Digital Repository @ Maurer Law

Penelope Sue Farthing

Tue, 11 Jul 2017 10:52:11 PDT

Penelope Sue Farthing was born in New Castle, Indiana, in 1945. She was raised in Kennard, Indiana (Henry County), where she attended and graduated from Knightstown High School (1963). She then enrolled at Purdue University where she received her B.A. in Political Science and Education in 1967. Later that fall she enrolled at the Indiana University School of Law and was granted her J.D. degree in 1970.

Since graduation, Farthing’s legal career has been based in Washington, D.C. She began as a Staff Attorney for the Federal Communications Commission before working in the Legislative/Congressional Affairs department of the Federal Trade Commission. She then joined the Department of Agriculture where she served as Special Assistant to the Administrator of the Food Safety and Inspection Service. Additionally, Farthing lead an industry wide coalition on gender-based insurance ratings, served as the Washington counsel for the Denver airport project, and worked successfully on safety and privacy matters as in-house counsel to the Allstate Insurance Company. Farthing rose to the position of Senior Partner at the Washington offices of Patton Boggs, LLP, before serving as Counsel to the Bose Public Affair Group (Bose McKinney & Evans, LLP). Since 2017, she has been Of Counsel to the Estell Group.

Penny Farthing served on the Indiana University School of Law’s Board of Visitors from 1994 to 2004 and was inducted into the Law School’s Academy of Law Alumni Fellows in 2010. Farthing also serves on the Board of Advisors of the Indiana University Center on Representative Government.

Book Review. Rethinking the Law School: Education, Research, Outreach and Governance by Carel Stolker

Ashley A. Ahlbrand — Mon, 10 Jul 2017 10:34:34 PDT

Transnational Legal Ordering and Regulatory Conflict: Lessons From the Regulation of Cross-Border Derivatives

Hannah L. Buxbaum — Mon, 10 Jul 2017 10:34:27 PDT

This paper is about the theory and practice of transnational legal ordering. It seeks to gain insight into how transnational legal orders advance by examining one particular problem: the regulation of over-the-counter derivatives. It focuses on events following the global financial crisis, which exposed the deficiencies of the existing regulatory order in identifying and containing the risks created by trading in those securities. In the aftermath of the crisis, the cross-border systemic risk created by OTC derivatives trading was characterized as a problem of global dimension that necessitated a global response. A wide array of actors and institutions, both domestic and international, mobilized quickly to craft a legislative and regulatory response. Given the catastrophic nature of the crisis, and the general manifestation of political will to address the problem, one might have predicted the successful development and institutionalization of shared norms regulating derivatives trading. That move, however, has been limited.

The paper begins by outlining the regulatory challenges resulting from the globalization of securities markets and describing the evolution of the international regulatory regime. It suggests that to the extent a transnational order has emerged in that area, it is characterized not by substantive norms that have settled across multiple national systems, but rather by conflicts norms guiding the allocation of regulatory authority among national systems. The paper then turns to the actions of regulators in the aftermath of the financial crisis. It analyzes the rulemaking process in the United States and elsewhere, considering the various actors and organizations involved in that process — from national regulatory agencies to international standard-setting bodies to multinational regulatory networks. This section investigates whether the financial crisis has precipitated the implementation of shared substantive norms within multiple legal systems. It concludes that it has not, and explores certain obstacles that have impeded the development of an effective transnational legal order in this area. The paper concludes with some observations about how the political economy of particular regulatory regimes intersects with the theory of transnational legal ordering.

Foreign Governments as Plaintiffs in U.S. Courts and the Case Against "Judicial Imperialism"

Hannah L. Buxbaum — Mon, 10 Jul 2017 10:34:20 PDT

One consequence of the increasingly transnational nature of civil litigation is that U.S. courts must frequently address the interests of foreign sovereigns. These interactions arise primarily in three contexts: when a foreign government is the defendant in a U.S. court; when a claim requires a U.S. court to scrutinize actions taken by a foreign government; and when a U.S. court seeks to apply U.S. law to persons or conduct within a foreign government’s borders. Each of these contexts invokes a narrative in which the engagement of U.S. courts interferes or conflicts with the prerogatives of a foreign sovereign. As a result, we typically consider the foreign relations implications of domestic adjudication within a paradigm that is oriented toward constraining the engagement of U.S. courts in matters involving foreign sovereign interests. What this approach ignores, however, is that foreign sovereigns are also plaintiffs in U.S. courts. A full account of the interactions between U.S. courts and foreign sovereigns must address cases in which foreign governments actively seek to engage U.S. judicial resources.

This article sets out the first systematic analysis of claims filed in U.S. domestic courts by foreign sovereigns, drawing on an examination of almost 300 claims. It establishes a basic typology of such claims, and then uses three case studies to explore and challenge the paradigm outlined above. The final section of the article relies on the results of this examination to analyze developments in one particular context: the extraterritorial application of U.S. law. It argues that the narrative of “judicial imperialism” that has come to frame discussion in that area is neither accurate nor useful.

Book Review. Liberty: Rethinking an Imperiled Ideal by Glenn Tinder

Daniel O. Conkle — Mon, 10 Jul 2017 10:34:12 PDT

Transformative Events in the LGBTQ Rights Movement

Ellen A. Andersen — Fri, 07 Jul 2017 13:11:12 PDT

Obergefell v. Hodges, the 2015 Supreme Court case holding that same-sex couples had a constitutional right to marry under the Due Process Clause of the Fourteenth Amendment, was widely hailed in the media as a turning point for the LGBTQ rights movement. In this article, I contemplate the meaning of turning points. Social movement scholars have shown that specific events can, on rare occasion, alter the subsequent trajectory of a social movement. Such events have been termed ‘transformative events.’ I ask whether judicial decisions have the capacity to be transformative events and, if so, under what circumstances. I begin by developing a set of criteria for identifying a transformative event which I then apply to a handful of judicial decisions that, like Obergefell, have been described widely as turning points and/or watersheds in the struggle for LGBTQ rights. I show that judicial decisions do indeed have transformative capacities; that they can trigger dramatic and enduring shifts in social movements. In so doing, I add to the growing body of scholarship examining the relationship between judicial decisions and social movement progress.

Intellectual Property Issues in Plant Breeding and Plant Biotechnology

Mark D. Janis — Fri, 07 Jul 2017 10:16:32 PDT

Expressive Eligibility

Mark D. Janis et al. — Fri, 07 Jul 2017 09:56:20 PDT

What is the ultimate objective of the patent eligibility inquiry? The recent eligibility case law — a frenzied outpouring of opinions from many esteemed judges — has revealed little while mystifying much. Scholars haven’t fared much better, although it isn’t for lack of trying. Our scholarly colleagues have offered a multitude of intriguing new perspectives on the analysis — drawing on history, the philosophy of science, semiotics, institutional choice, and so on. But we continue to wonder exactly what the eligibility inquiry is for.

In addressing that question here, we’re following a familiar methodological tradition: we propose to reimagine eligibility from a new perspective, that of expressive theories of law. Our central claim is that eligibility rules can be understood as performing expressive functions that are at least as weighty, if not more so, than the traditional gatekeeping function. We argue that it’s helpful to identify those expressive functions for three reasons: (1) doing so helps explain some aspects of eligibility doctrine that otherwise appear incoherent; (2) doing so brings to the fore some new ideas about the objectives of the eligibility inquiry that link to eligibility’s expressive functions; and (3) doing so may enable courts to design eligibility rules that facilitate the development of new behavioral norms in the patent community.

The SEC Staff's "Cybersecurity Disclosure" Guidance: Will It Help Investors or Cyber-thieves More?

Sarah Jane Hughes et al. — Thu, 06 Jul 2017 11:50:08 PDT

Are These Game Changers? Developments in the Law Affecting Virtual Currencies, Prepaid Payroll Cards, Online Tribal Lending, and Payday Lenders

Sarah Jane Hughes et al. — Thu, 06 Jul 2017 08:35:54 PDT

In the year since our last survey, there have been significant legal developments in the areas of virtual currencies, prepaid payroll cards, online tribal lending, and payday lending. What connects some of these topics is an increasingly common strategy by federal banking regulators to influence and control the actions of entities that are not directly subject to their supervision through the relationships such entities have with regulated financial institutions. These developments also demonstrate robust state legislative and regulatory action relating to the provision of electronic payments and financial services, and document class actions alleging violations of federal and state laws.

This survey addresses developments taking place roughly between June 1, 2013 and June 5, 2014. Part II of this survey discusses the travails of Bitcoin and other alternative currencies. Part III addresses actions related to payroll cards. Part IV looks at the U.S. Supreme Court decision in Michigan v. Bay Mills Indian Community and various state efforts to rein in online interstate lending marketed by tribal communities and other lenders. Part V examines the U.S. Department of Justice's "Operation Choke Point," the prosecution of Four Oaks Bank, and a lawsuit brought by payday lenders against federal banking regulators. Part VI sets forth conclusions about the manner in which federal and state regulation of electronic payments and financial services is developing and suggests issues to watch closely in 2015.

L'Embarras du Choix: A Year of Developments in the Laws Affecting Remittance Transfers, Credit Cards, and Certain Prepaid Cards

Sarah Jane Hughes — Thu, 06 Jul 2017 08:35:47 PDT

Developments in the Laws Governing Electronic Payments

Sarah Jane Hughes — Thu, 06 Jul 2017 08:35:41 PDT