Further Standing Lessons

Heather Elliott

Professor Elliott wrote a piece for the Indiana Law Journal in 2012 (available here).  In this article, she updates her analysis and explores the implications of both the health-care and marriage equality cases on the Court’s standing doctrine.

Full article available here.

 




Justice Scalia’s Truthiness and the Virtues of Judicial Candor

Allen Rostron

Antonin Scalia is by far the Supreme Court’s greatest wit and most colorful personality. When I choose audio clips from the Court’s oral arguments to play in my constitutional law classes, I would like to offer a balanced sample of views from the left and right sides of the Court. But I cannot resist loading up on Scalia sound bites, because in almost every major case he serves up the sharpest questioning and most imaginative hypotheticals. His judicial opinions are also remarkably passionate and frank. If he thinks a lawyer’s or even a fellow Justice’s argument is nonsense, he will bluntly say so. He has received intense criticism for supposedly being “too political” in some of his opinions, such as his scorching dissent in last year’s case about Arizona laws aimed at illegal immigrants or his bitter denunciation of the Court’s last major ruling on the detention of suspected terrorists. But what purpose is really served by judges hiding their motivations behind a false veneer of detachment and stilted formalism?

Full article available here.

 




Doctrinal Conversation: Justice Kagan’s Supreme Court Opinions

Laura Krugman Ray

In her first two terms on the Supreme Court, Justice Elena Kagan has crafted a distinctive judicial voice that speaks to her readers in a remarkably conversational tone.  She employs a variety of rhetorical devices: invocations to “remember” or “pretend”; informal and even colloquial diction; a diverse assortment of similes and metaphors; and parenthetical interjections that guide the reader’s response.  These strategies engage the reader in much the same way that Kagan as law professor may well have worked to engage her students, and in the context of judicial opinions they serve several purposes.  They make Kagan’s opinions accessible to lay readers as well as legal professionals, a goal she has specified.  More generally, her conversational style works to persuade her readers that her arguments are grounded in both legal doctrine and the familiar texture of human experience.

Full article available here.

 




Beyond Chemicals: The Lessons that Toxic Substance Regulatory Reform Can Learn from Nanotechnology

Scott Bomkamp

Nanotechnology is a revolution in applied science. By manipulating molecules on the scale of billionths-of-a-meter, scientists have created materials that exhibit “almost magical feats of conductivity, reactivity, and optical sensitivity, among others.” Nanotechnology also has the potential to drive an economic revolution. Retailers already sell over 300 products that incorporate nanotechnology, and according to one estimate, nanotechnology will be a trillion-dollar-a-year industry by 2015. In congressional testimony, Ray Kurzweil, Chairman and Chief Executive Officer of Kurzweil Techonologies, asserted that nanotechnology would result in the pervasive miniaturization of all human industry by the middle of the twenty-first century.

The tremendous economic benefit of nanotechnology, however, will come at a price. Nanotechnology applications present novel, serious, and possibly irreversible threats to human health and the environment. Recently, the field of nanotoxicology has been developed to characterize and quantify these threats. Part I of this Article describes the emerging field of nanotechnology and its applications.

Because of nanotechnology’s mixed blessing, the United States government must select a strategy to maximize nanotechnology’s economic potential while containing its health and environmental dangers. Part III of this Article argues that the best strategy is to incorporate nanotechnology regulation into a general-purpose toxic substances statute, such as by amending the Toxic Substances Control Act (TSCA), which is intended to regulate all chemical substances at the point of manufacture. Part II of this Article discusses the early research demonstrating health and environmental dangers associated with nanotechnology.

Part IV of this Article provides background on toxic substances law, and Part V proposes changes to United States toxic substances law to address nanotechnology’s threat. Two laws figure heavily into this discussion: TSCA and the European Union directive, known as Registration, Evaluation, and Authorisation of Chemicals (REACH).7 REACH is modeled to a large degree on TSCA, but addresses many of TSCA’s perceived shortcomings. Congress is considering revising TSCA based on REACH, which would essentially create a third-generation toxic substances statute.

Full article (.pdf) available here.




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

Joanna K. Sax

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.

Full article (.pdf) available here.




The Irony of AT&T v. Concepcion

Colin P. Marks

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.

Full article (.pdf) available here.




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

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.

Full article (.pdf) available here.




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

Martha F. Davis & Johanna Kalb

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.

Full article (.pdf) available here.




Fundamental Versus Deferential: Appellate Review of Terminations of Parental Rights

Karen A. Wyle

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.

Full article (.pdf) available here.




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

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.

Full article (.pdf) available here.