Indiana Law Journal

Application of Default Rules to Address Financial Conflicts of Interest in Academic Medical Centers

Joanna K. Sax — Mon, 25 Mar 2013 08:51:14 PDT

This Essay proposes that the rules governing financial conflicts of interest for scientists within the National Institutes of Health apply to scientists at Academic Medical Centers because scientists at both places receive federal funding. The rules governing financial conflicts of interest within the National Institutes of Health are stricter than the rules at Academic Medical Centers. The cornerstone of financial conflicts of interest rules at Academic Medical Centers is disclosure, which is inadequate. This Essay builds on previous work calling for significant changes to rules addressing financial conflicts of interest, and it promotes changes by calling for the application of stringent rules governing financial conflicts of interest in Academic Medical Centers.

The Irony of AT&T v. Concepcion

Colin P. Marks — Mon, 25 Mar 2013 08:51:12 PDT

This Essay explores the possible dual readings of Concepcion in light of the FAA and its interpretation, including Supreme Court precedents. This Essay concludes that though there is support for interpreting the Concepcion decision narrowly, it is more likely that a broader interpretation was intended, but the metes and bounds of this opinion have yet to be explored. Nonetheless, under this broad interpretation, the effect on consumers will be to discourage individuals from seeking redress for their claims. Indeed, the decision may actually encourage businesses to breach contractual obligations with impunity when the individual sums owed are too small to justify— in the mind of a reasonable consumer—the time and effort to seek a remedy.

How Jon Stewart and Lady Gaga Made Congress Less Lame: The Impact of Social Media on the Passage of Bills Through the "Lame Duck" Session of the 111th Congress and Beyond

Onika K. Williams — Mon, 25 Mar 2013 08:51:11 PDT

The lame duck 111th Congress saw tremendous action in a relatively short period of time, and it was also witness to a phenomenon of social media. Users on websites such as Facebook and Twitter employed social media to send messages to their representatives and to actively participate in the lame duck session. Jon Stewart used television to advocate for Congress’s passing of the James Zadroga 9/11 Health and Compensation Act, and Lady Gaga employed Twitter to support the Don’t Ask, Don’t Tell Repeal Act of 2010. Both bills subsequently passed Congress. The social media phenomenon did not end with the 111th Congress, however, and the 112th Congress saw issue after issue arise, many stemming at least in part from some aspect of social media. This Congress proved that social media’s influence may not always be positive, but its effect is real and should be contemplated in a serious fashion.

Oklahoma and Beyond: Understanding the Wave of State Anti-Transnational Law Initiatives

Martha F. Davis et al. — Mon, 25 Mar 2013 08:51:09 PDT

In the past year, initiatives to block judicial consideration of foreign or international law have been introduced in over half of the states. The proposals vary, ranging from the “softer” versions, which codify existing common law principles governing judicial decision making to the more extreme versions, which aggressively bar all consideration of foreign and international law, virtually eliminating judicial discretion regarding the relevance of such law in a particular case. This Essay contends that in all their variations, these anti-transnational law measures pose serious and fundamental challenges to the American judicial system. They undermine our federalist system by ignoring federal constitutional text specifying that ratified treaties and international customary law are the “supreme Law of the Land,” to be enforced by federal and state courts alike. Moreover, the uncertainty they create could have dramatic impacts on the nation’s ability to conduct foreign policy, international trade, and national security. The result of these proposals, should they be enacted, would likely be frustration of international business transactions, elimination of judicial discretion in individual cases, and restriction on individual freedom to contract. Far from preserving American values, these proposals would serve to undermine them.

Fundamental Versus Deferential: Appellate Review of Terminations of Parental Rights

Karen A. Wyle — Fri, 22 Mar 2013 13:54:43 PDT

Any attorney who handles or follows cases involving termination of parental rights will have often read, “This court has long had a highly deferential standard of review in cases concerning the termination of parental rights.” This article addresses several questions that arise from that familiar language:

Does the Indiana Court of Appeals in fact have a tradition or practice of highly deferential review of termination orders?
Is this deference greater than the court accords to trial court decisions in other family law matters or in non-family civil appeals?
If so, on what legal analysis is this special deference based?
Is it appropriate to give more deference to a trial court’s decision to forever sever the bonds between parent and child than to other trial court decisions, in and outside the area of family law?

As shown in this article, the court is in fact significantly more likely to affirm termination orders than any other kind of civil judgments, including judgments in other family law matters. The Rules of Appellate Procedure also operate to increase the difficulties encountered in appeals of termination orders. This especially unfavorable treatment, however, rests on the slenderest of legal foundations and raises grave constitutional concerns. The challenge is to find an effective and practical way to move toward an appropriate level of appellate scrutiny in termination appeals.

Section 1983 Wrongful Death and Survival Actions in the Seventh Circuit: An Indiana Litigant's Guide to Claims after Russ v. Watts

Michelle R. Gough — Fri, 22 Mar 2013 13:54:42 PDT

The availability of survival and wrongful death damages in 42 U.S.C. § 1983 cases is an area that involves both changing precedent and unaddressed issues within the Seventh Circuit. In both of the aforementioned types of claims, the cases will necessarily involve the tangled application of both state and federal law, and the Seventh Circuit and other federal courts of appeals have struggled to provide a clear, coherent approach to these issues. Indeed, there is strong disagreement among the circuits. Dean Steven H. Steinglass offered the most comprehensive discussion of the nature of both types of claims under § 1983 in Wrongful Death Actions and Section 1983, which was published in the Indiana Law Journal in 1985. However, a subsequent shift in precedent in the Seventh Circuit has significantly impacted the nature and availability of claims under the circumstances giving rise to wrongful death and survival claims. This Article provides an updated discussion of the contours for wrongful death and survival claims asserted under § 1983 by Indiana claimants proceeding in the Seventh Circuit for damages when a loved one dies as the result of a state actor’s behavior that violated § 1983 or when a loved one dies with a pending § 1983 claim.

Community as a Redistricting Principle: Consulting Media markets in Drawing District Lines

Jason C. Miller — Fri, 22 Mar 2013 13:54:41 PDT

With the 2011 redistricting process poised to commence across the country, debates are raging as to who should draw district lines, how to keep those individuals from drawing them for partisan advantage, and the best way to draw minority districts. This paper addresses the largely overlooked area of media markets. Districts drawn to conform with media markets experience higher voter turnout. Moreover, linking a city and its economically-connected suburbs together is simply common sense. Discussing the impact of district conformity, or lack thereof, with media market boundaries on campaign strategy, news reporting, voter participation, grassroots organizing, and candidate recruitment, this paper examines two examples of poorly-drawn districts before proposing that line-drawers consider community boundaries — typically deliniated by media markets — in creating districts. Additionally, this paper urges courts to consider community boundaries among the various factors when deciding between competing plans, and that future scholarship and proposals for reform also examine media markets.

Bottom-up or Top-down? Removing the Privacy Law Obstacles to Healthcare Reform in the National Healthcare Crisis

John W. Hill et al. — Thu, 21 Mar 2013 08:19:44 PDT

Issues of healthcare availability and quality are among the most profound facing our nation. If a high-quality, accessible healthcare system of a truly national nature is to be devised, electronic connectivity—including increased use of electronic medical records and similar technological advances—must be a key feature. Yet such connectivity may give rise to patients’ concerns regarding the privacy of their medical information. Because such concerns demand respect, a challenge lies in balancing patients’ privacy interests against the important information-sharing interests underlying a national healthcare network. The Health Insurance Portability & Accountability Act (HIPPAA) is a key federal law that addresses many privacy issues regarding patients’ medical information, but HIPAA does not preempt state laws that furnish greater privacy protection than HIPAA provides. Accordingly, there exists a patchwork quilt of differing privacy protection provisions. This Article explores the issues just outlined and stresses the importance of a stronger federal role in standardizing medical information privacy rules, so that the current patchwork quilt of privacy regulations does not impede the development of a national healthcare network.

The Uses and Abuses of Religion in Child Custody Cases: Parents Outside the Wall of Separation

Joshua S. Press — Thu, 21 Mar 2013 08:19:44 PDT

Religious custody disputes such as those at the Fundamentalist Church of Jesus Christ of Latter-Day Saints compound in April, 2008 are very complex and are finding their way into courts with increasing regularity. This Essay argues that in responding to these religious custody disputes, courts should abstain from either analyzing a parent’s religious practices for their perceived “risks of harm” to the child, or from applying a flat rule to ensure that the custodial parent’s religious preferences take primacy. Instead, courts should employ the actual or substantial harm standard—which would only bar a parent from fully practicing her religion if it would cause physical or psychological harm to the child—to such situations. Like the other custody approaches, this standard exists for the secular purpose of preventing harm to the children’s physical and emotional well-being. Unlike the other two approaches, however, the actual or substantial harm standard only incidentally affects parents’ free exercise rights. In this way, the actual or substantial harm approach provides courts with a way of avoiding any constitutional violations of the Religion Clauses, and will almost always allow the parents to practice their different faiths.

The Unabomber Revisited: Reexamining the Use of Mental Disorder Diagnoses as Evidence of the Mental Condition of Criminal Defendants

Adam K. Magid — Thu, 21 Mar 2013 08:19:42 PDT

This Article revisits a longstanding debate concerning the appropriateness of diagnostic evidence in criminal cases in which a defendant’s mental condition is at issue. As illustrated through a case study of Theodore Kaczynski, more widely known as the “Unabomber,” a diagnosis of paranoid schizophrenia poses a risk of confounding a judge or jury attempting to ascertain an accurate picture of the mental state of a criminal defendant, specifically by (i) suggesting symptoms not actually present, (ii) creating a distorted picture of symptoms that are present, and (iii) suggesting organic, determinative factors as the mechanism behind a defendant’s actions, even where deliberate choice is a more convincing explanation. The misleading nature of such a diagnosis, moreover, can lead to legal outcomes inconsistent with the theoretical goals of the criminal law, at least with respect to the insanity defense and the death penalty. This Article does not necessarily call for the complete abolition of the use of diagnostic evidence in criminal proceedings; instead, it highlights some of the perils associated with such evidence so that, at minimum, courts can employ an appropriate level of thoughtful caution when faced with such evidence in the future.

“Oh, it is you, is it?”: Closing the Door on Reasonable Resistance to Unlawful Police Entry in Indiana

Jesse Drum — Mon, 25 Feb 2013 08:35:14 PST

Balancing the Scales: Reinstating Home Privacy Without Violence in Indiana

Tyler Anderson — Mon, 25 Feb 2013 08:35:09 PST

A Lesson on Some Limits of Economic Analysis: Schwartz and Scott on Contract Interpretation

Steven J. Burton — Mon, 25 Feb 2013 08:35:05 PST

Contract interpretation has been a hot topic of scholarly debate since 2003, when Professors Alan Schwartz of Yale and Robert E. Scott of Columbia published their provocative article, Contract Theory and the Limits of Contract Law, much of which develops an efficiency theory of contract interpretation. In 2010, they published a restatement of this theory and reply to critics, which has not yet drawn much commentary. This Article suggests that, even as restated, their theory offers an object lesson on some limits of economic analyses of the law. The Article assumes that their central argument is mathematically and economically impeccable. It suggests, however, that the theory nonetheless fails. Their central argument rests on a naïve understanding of the nature of language and the legal context of contract interpretation. Their efficiency claim neglects an alternative theory that does not rest on economics, but that probably would support a more efficient law. And their basic premise—that efficiency should be the sole goal of a law for business contracts—makes the theory strikingly vulnerable. In particular, virtually everyone, Schwartz and Scott included, agrees that rule of law values should constrain all laws. When considered, however, they doom Schwartz and Scott’s interpretation theory, as they may doom any monist theory.

The Collective Origins of Toxic Air Pollution: Implications for Greenhouse Gas Trading and Toxic Hotspots

David E. Adelman — Mon, 25 Feb 2013 08:35:03 PST

This Article presents the first synthesis of geospatial data on toxic air pollution in the United States. Contrary to conventional views, the data show that vehicles and small stationary sources emit a majority of the air toxics nationally. Industrial sources, by contrast, rarely account for more than ten percent of cumulative cancer risks from all outdoor sources of air toxics. This pattern spans multiple spatial scales, ranging from census tracts to the nation as a whole. However, it is most pronounced in metropolitan areas, which have the lowest air quality and are home to eighty percent of the U.S. population.

The secondary status of industrial facilities as sources of air toxics has important implications for the current debate over cap-and-trade regulation—the policy instrument of choice for controlling greenhouse gas (GHG) emissions responsible for climate change. Environmental justice advocates have opposed GHG trading in significant part because it could exacerbate inequitable exposures to toxic co-pollutants, not GHGs themselves, in minority and low-income communities.

The likelihood of such disparities occurring has remained an open empirical question. The geospatial data reveal that, apart from a few readily identifiable census tracts, the potential for GHG trading to cause toxic hotspots is extremely low. Moreover, for the few jurisdictions in which disparities cannot be ruled out, targeted policies exist to prevent them without compromising market efficiency.

Competition and Crisis in Mortgage Securitization

Michael Simkovic — Mon, 25 Feb 2013 08:34:59 PST

U.S. policy makers often treat market competition as a panacea. However, in the case of mortgage securitization, policy makers’ faith in competition is misplaced. Competitive mortgage securitization has been tried three times in U.S. history— during the 1880s, the 1920s, and the 2000s—and every time it has collapsed. Most recently, competition between mortgage securitizers led to a race to the bottom on mortgage underwriting standards that ended in the late 2000s financial crisis. This Article provides original evidence that when competition was less intense and securitizers had more buyer power, securitizers acted to monitor mortgage originators and to maintain prudent underwriting. However, securitizers’ ability to monitor originators and maintain high standards was undermined as competition shifted power away from securitizers and toward originators. Although standards declined across the market, the largest and most powerful of the mortgage securitizers, the Government Sponsored Enterprises (GSEs), remained more successful than other mortgage securitizers at maintaining prudent underwriting. This Article proposes reforms based on lessons from the recent financial crisis: merge the GSEs with various government agencies’ mortgage operations to create a single dedicated mortgage securitization agency that would seek to maintain market stability, improve underwriting, and provide a long-term investment return for the benefit of taxpayers.

Patching a Hole in the JOBS Act: How and Why to Rewrite the Rules that Require Firms to Make Periodic Disclosures

Michael D. Guttentag — Mon, 25 Feb 2013 08:34:56 PST

Provisions in the Jumpstart Our Business Startups Act of 2012 have made it much easier for firms to avoid federal periodic disclosure obligations, but these provisions were enacted based upon a virtually nonexistent legislative record and upended rules established only after careful consideration almost fifty years earlier. Determining when firms should be required to comply with federal periodic disclosure requirements is best done in the context of a broader understanding of the history and economics of periodic disclosure regulation. This Article provides such an understanding.

The history of periodic disclosure regulation in the United States is traced back to its origins in the eighteenth century, and the economic analysis of periodic disclosure regulation is updated and refined to incorporate recent findings. Building on this historical and economic understanding of periodic disclosure regulation, I identify a flaw in the underlying structure of the rules currently used to determine when firms must make periodic disclosures. To rectify this structural problem, I conclude that firms with a market capitalization of less than $35 million or fewer than one hundred beneficial shareholders should be granted an automatic exemption from periodic disclosure requirements. All other firms should be provided a choice between: (1) complying with federal periodic disclosure obligations, or (2) implementing measures that would mitigate the need for periodic disclosure regulation, such as severely restricting the tradability of the firm’s shares or committing to an acceptable alternative disclosure regime.

The Jurisdiction of the Court of Federal Claims and Forum Shopping in Money Claims Against the Federal Government

Gregory C. Sisk — Mon, 25 Feb 2013 08:34:54 PST

Procedural Fairness in Election Contests

Joshua A. Douglas — Mon, 25 Feb 2013 08:34:51 PST

Step Aside, Mr. Senator: A Request for Members of the Senate Judiciary Committee To Give Up Their Mics

Paul E. Vaglicia — Fri, 26 Oct 2012 12:59:53 PDT

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 confirmation process. Other legal scholars have called the process a complete mess and likened it to a circus or a kabuki dance.

Although there are multiple aspects of the confirmation process that could use reform, this Note draws attention to one flaw of the confirmation hearings that many overlook—members of the Senate Judiciary Committee (the “Committee”) use the confirmation hearings as a forum to voice their own political beliefs instead of focusing their undivided attention on the qualifications of the nominee. Since senators do not focus entirely on the nominee, they are not thoroughly examining the nominee’s fitness for the Court. As nationally televised events, it only follows that senators use the confirmation hearings as a medium to speak to theirconstituents. One may ask why this matters or point out that one would expect this of senators; after all, senators constantly have their campaigning caps on, especially when receiving national attention. However, these responses ignore the negative effects of senators placing themselves, rather than the nominees, in the confirmation hearings’ limelight. If the purpose of confirmation hearings is to determine the qualifications of a nominee and ensure that he or she is fit for the Court, then this purpose goes unfulfilled if constituents influence senators’ lines of questioning. Senators consume themselves with how their constituents back home will view their questioning and fail to focus on what is at stake—the confirmation of the nation’s next Supreme Court justice. If the purpose of confirmation hearings is to evaluate the nominee, then this purpose would best be served by having undivided attention focused on the nominee and his or her answers. If senators have an ulterior motive—engaging in an open dialogue with their constituents—then the confirmation process does not effectively serve its primary purpose.

Part I of this Note investigates the confirmation and appointment power that the Constitution delegates to the Senate. Part II provides a detailed history of the confirmation process and its dramatic evolution over the last century, which is crucial in order to fully comprehend today’s process and its problems. Part III, after examining the media’s role within the confirmation process and the publicity that the confirmation hearings attract, offers proof that senators are cognizant of their national audience and highlights specific examples of senators addressing their constituents via the confirmation hearings. Part IV concludes by setting forth three possible solutions to the overarching problem: implementing anonymous questioning of the nominees through Committee representatives; appointing experts to question the nominees in the senators’ places; and replacing video recording of the hearings with audio recording.

The Price They Pay: Protecting the Mother-Child Relationship Through the Use of Prison Nurseries and Residential Parenting Programs

Anne E. Jbara — Fri, 26 Oct 2012 12:59:53 PDT

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 women with nonviolent criminal histories to take part. Some states have instituted alternative community-based residential parenting programs that fall between halfway houses and prisons; others have segmented off the prison to build a nursery that will hold both mothers and babies.

These institutions recognize the emotional value of allowing mother and child to bond, while simultaneously giving incarcerated mothers an opportunity to learn about the basics of being a parent, both from a practical and an emotional standpoint. On the other hand, many onlookers take offense at the thought of young children being imprisoned for their mothers’ crimes. Why are women allowed to reside with their children, despite committing a punishable act? State governments, along with the federal government, have weighed these issues when creating such programs, and, in the process, have ultimately concluded that keeping families together outweighs the retributive value of incarceration. While nontraditional, this approach to imprisonment is useful for both its deterrent and rehabilitative aspects and may even create multigenerational benefits.

As the female prison population continues to grow, many have argued for increasing the number of facilities that offer alternative prison programs for pregnant women. In 2009, 6.9% of U.S. prisoners were women, according to the U.S. Department of Justice. In 2004, 4% of women in state prisons, 3% of women in federal prisons, and 6% of women in jails were pregnant. A large majority of women in this group also have at least one child under the age of eighteen at home, and many are single parents. Conversely, less than one in five incarcerated men are single parents. A number of scholars have investigated the societal impact of these family arrangements and have found that, while children whose fathers are incarcerated more often than not live with their mothers, children whose mothers are incarcerated typically live with a nonparent family member or become part of the foster care system.

Studies have shown that children who fail to sufficiently bond with their mothers are more likely to suffer from developmental delays, an inability to connect with others, and a greater likelihood of being convicted of a crime later in life. Consequently, it is difficult not to wonder whether incarcerating mothers is more detrimental for the mother or the child. Considering these negative effects, many children may believe they are the ones being punished for their mothers’ crimes. While children who are left with their fathers or other relatives may be subject to poverty, a lack of stimulation, violence, non-nutritious food, or any number of other negative side effects, the in-prison or alternative programs would, in an ideal world, give children a stable, nurturing environment in which they are given significant attention and at least three meals a day. Even though they are surrounded by concrete walls and barbed wire, these babies may ultimately have a better opportunity to begin their lives on the right foot than those children who are separated from their mothers and sent out into the world. Furthermore, using community-based residential parenting programs as a transitional tool equips both mother and child with a sturdy foundation before releasing them into regular society. This Note advocates a hybrid approach to alternative prison programs in which community-based residential parenting programs are not used in lieu of, but in addition to prison nurseries. The combination of the two approaches would maximize the individual emotional benefits to both mother and child and the more general societal benefits while being less susceptible to political criticism.

Part I examines the effects prison nurseries and community-based residential parenting programs can have on the cognitive and emotional well-being of both the mother and child in arguing that these programs are beneficial to both parties. Part II explores some of the existing programs and looks to empirical evidence in determining whether the states and federal government have instituted programs that best cater to the emotional needs of mothers and babies. Part III argues for the combined use of these programs to ensure a socially appealing punishment and a logical transitional period for mother and child. Finally, Part IV addresses the arguments against prison nurseries and community-based residential parenting programs and concludes that the individual and societal benefits of these programs outweigh the financial burdens and moral opposition.