Indiana’s Texting-While-Driving Ban: Why Is It Not Working and How Could It Be Better?
VOLUME 91

Emma Gormley

In an attempt to respond to the serious danger of texting while driving, well-intentioned state legislatures across the country have enacted almost uniformly under-inclusive laws that do little to deter drivers from engaging in risky, distracting behavior. These laws leave police floundering to find ways to enforce them. For many drivers, the perceived benefits of texting or otherwise using a cell phone while driving are high, while the risks seem low. Indiana’s texting while driving ban for all drivers, first put in place in 2011, has gone largely unused by police in the years since its passing, with fewer than 400 tickets written as of mid-2014. State police attribute the low numbers mainly to the difficulty they have had in enforcing the law. As it stands today, Indiana’s texting while driving statute contains gaping loopholes, which leave drivers free to engage in risky behaviors with little fear of legal repercussions.

Full article available here.

 




Ranking Law Schools with LSATs, Employment Outcomes, and Law Review Citations
VOLUME 91

Alfred L. Brophy

This Article offers an alternative to the much-discussed U.S. News & World Report rankings. Where U.S. News rankings are affected by a wide variety of factors some of which are criticized as irrelevant to what prospective students care about or should care aboutthis Article looks to three variables: the median LSAT score of entering students, which seeks to capture the quality of the student body; the percentage of the graduating students who are employed at nine months following graduation at full-time, permanent, JD-required jobs (a separate analysis excludes school-funded positions and solo practitioners from this variable); and the number of citations to each school’s main law review, which seeks to capture a school’s recent reputation. It rank-orders each of those variables, averages those ranks to obtain a new ranking, and then compares those new rankings to those of the 147 schools analyzed in U.S. News & World Report in March 2014. It identifies the schools that improve and decline the most with the new ranking. This Article provides ranks for all 194 American Bar Association accredited law schools that U.S. News included in its rankings released in 2014, including the forty-seven schools that U.S. News put in its “unranked” category.

Full article available here.

 




Beyond Transparency: The Semantics of Rulemaking for an Open Internet
VOLUME 91

Reza Rajabiun

In trying to promote the development of an open Internet, the U.S. Federal Communications Commission (FCC) has primarily tried to encourage network providers to be transparent about their traffic management practices and quality of service prioritization policies. Dominant network operators have successfully challenged this minimalist approach to addressing end-user concerns about the rise of a two-tiered Internet, motivating the FCC to engage in yet another public consultation process to assess its future approach to the problem. This article maps the debate using Natural Language Processing (NLP) tools that allow us to build a systematic picture of the positions of the regulator and groups of private interests trying to shape its decisions. A quantitative linguistic analysis of the content of formal written submissions to the FCC by parties with divergent views helps document how the conceptual model of the regulator evolved during the rulemaking process leading to the FCC February 2015 network neutrality Order. Despite the adoption of a broader substantive basis by the FCC under Title II of the Communications Act, the rule-of-reason approach to substantive interpretation in the Order limits the capacity of the new regulatory framework to protect and promote an open Internet. The evidence suggests the public consultation process is likely to serve as a tool for legitimizing status quo institutional arrangements that allow operators to engage in discriminatory traffic prioritization strategies.

Full article available here.




Cook v. NARA Versus the Public’s Right to Know
VOLUME 91

Sarah Lamdan

In Cook v. National Archives and Records Administration , the court misapplied the Freedom of Information Act’s (FOIA) privacy exemption to hide presidential records, favoring secrecy over the public interest. The court set up a double standard by protecting George W. Bush and Richard Cheney’s library reference requests—even though, under laws created during the Bush administration, librarians would face possible prison sentences for refusing to turn over similar requests.

This case note suggests that the Second Circuit tipped the balance too far in favor of privacy in Cook v. NARA by mistakenly (1) treating Bush and Cheney like ordinary academic scholars, (2) ignoring the open-government, transparency purposes of both the Presidential Records Act and the Freedom of Information Act, and (3) determining that PRA embargo periods are to provide former officials with unfettered access to their records.

Full article available here.




What Iron Pipefittings Can Teach Us About Public and Private Power in the Market
VOLUME 91

Sandeep Vaheesan

In this Article, the author examines the current debate on whether state and local regulations that impede emerging players (like Airbnb, Tesla, or Uber) serve the public interest. Vaheesan argues that this focus on government restraints implicitly discounts private efforts to create closed markets—whether it is, for example, by Amazon, Comcast, or Google. This Article goes on to demonstrate, through the example of a recent Federal Trade Commission decision on the monopolization of the domestic iron pipe fittings industry, that sometimes it is only through public intervention that competition can be maintained against private forces seeking to do away with it.

Full article available here.




Go Set a Watchman and Growing Up
VOLUME 91

Allen Mendenhall

The narratives of Jean Louise in To Kill a Mockingbird and Go Set a Watchman are as consistent as lived experience, which is marked by disruption and contingency, ambiguity and rupture, fragmentation and complexity. Only the careless would have accepted Jean Louise and Atticus as one-dimensional, self-contained figures unspoiled by the mores, customs, and vocabularies of their white discursive community. Such a sanitized view of Jean Louise and Atticus erases and rewrites rather than represents history in its disturbing, enlightening variety and complexity. Jean Louise and Atticus are not stock character types; their thoughts and behaviors are irreducible and inexhaustible.

Full article available here.




Harry Pratter’s Wisdom
VOLUME 91

Jonathan Pratter

From 1950 to 1994 Harry Pratter taught law at Indiana University-Bloomington. One of his favorite sayings (he had many of these) was Maitland’s “[T]aught law is tough law,” a phrase that a forty-four year teaching career entitles
you to utter with some frequency. In response to Sartre’s notorious challenge, “Do you have anything to say?” Pratter could certainly answer yes. He took Sartre literally. Pratter preferred to speak—that is to teach, and not to write. The source of Pratter’s strong preference for speech over writing must remain a mystery. The consequence is that a good deal of what he thought and said has not been preserved.

That’s a shame because Harry Pratter had something to say that was well worth hearing. The hope is that this essay will be able to convey something of the flavor and tenor of Harry Pratter’s thought.

Full article available here.




Solving the Puzzle of Transnational Class Actions
VOLUME 90

Kevin M. Clermont

How should a U.S. class action treat proposed foreign class members in a circumstance where any resulting judgment will likely not bind those absentees abroad? The Author responds to Zachary Clopton’s analysis of this puzzle, and introduces a counterproposal.

Full article available here.




From the Seat of the Chair: An Insider’s Perspective on NCAA Student-Athlete Voices
VOLUME 90

Scott Krapf

This Article explains how student-athletes already have a significantly influential voice. The Author calls upon his personal experience as a former Division I student-athlete and Chair of the NCAA Division I National Student-Athlete Advisor Committee to show that student athletes are capable of effectuating change by expressing themselves through existing means, rather than unionization.

Full article available here.




Judicial Selection in Congress’ Lame Duck Session
VOLUME 90

Carl Tobias

This Article first scrutinizes the Obama Administration confirmation and nomination processes. It then critically explores selection and concludes that Republican obstruction instigated the most open positions the longest time. Because this deficiency undermines swift, economical, and fair case resolution, the Article suggests ideas to promptly decrease the remaining unoccupied judgeships after the session commences.

Full article available here.




Citizens Disunited: McCutcheon v. Federal Election Commission
VOLUME 90

Adam Lamparello

In McCutcheon v. Federal Election Commission, the Supreme Court invalidated aggregate limits on individual contributions to political candidates and committees. Despite the immediate public outcry, Chief Justice Roberts’ opinion was constitutionally defensible, just like Justice Kennedy’s opinion in Citizens United v. Federal Election Commission. The wealthy, like everyone else, are entitled to the full enjoyment of the Constitution’s express and penumbral guarantees.

The problem is that everyone else—including the poor and middle class—also have that right. As a practical matter, however, the Constitution’s written and unwritten rights are alive for the wealthy, merely evolving for the middle class, and on life support for the poor.

Full article available here.




Domestic Violence, Gun Possession, and the Importance of Context
VOLUME 90

Wesley M. Oliver

Federal law prohibits those convicted of committing an act of domestic violence from possessing weapons. Within a few months of the twentieth anniversary of the enactment of the Violence Against Women Act, the U.S. Supreme Court decided that this statute would apply even to those convicted of crimes that did not necessarily involve violent acts. This conclusion strains the ordinary meaning of language, but is quite consistent with a long tradition in criminal cases that favors a pro-government interpretation of a statute when the public welfare is at stake.

Justice Scalia correctly criticized the majority for creating inconsistent definitions of the same language in a single statute, something courts try to avoid. Viewed as a statutory interpretation case, Castleman’s reasoning is a stretch; viewed as an interpretation of a public welfare statute, Castleman is consistent with a long-standing principle of criminal law.

Full article available here.




Are Indiana’s Newly Expunged Convictions Still Available for Impeachment?
VOLUME 90

Graham Polando

During trial, a litigant can, of course, impeach a witness with certain criminal convictions. However, Indiana Evidence Rule 609(c), like its federal counterpart, prohibits parties from introducing such evidence when “the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated . . . .” Indiana, however, has no procedure for annulment or certificates of rehabilitation—and, until recently, had nothing resembling one.

To some fanfare, the General Assembly has recently enacted an expungement provision. As courts begin to grant these expungements, it is only a matter of time before their recipients will begin to testify. Despite its intent, the expungement legislation fails to completely erase the past: litigants seeking to attack the witness’s credibility may legitimately unearth an expunged conviction.

Full article available here.




Note: Legislating Labors of Love: Revisiting Commercial Surrogacy in New York
VOLUME 90

Deborah Machalow

In 1978, Louise Brown, the first baby conceived through in vitro fertilization (IVF) changed the world. Doctors first considered fertilization outside a woman’s body in 1934, and it has since become a medical mainstay. Since 1978, around five million children worldwide have been born through assisted reproductive technology. In IVF, eggs are retrieved from a woman’s ovaries and fertilized in a lab. The resulting embryos are transferred into the uterus of either the woman who produced the eggs or of another woman. This procedure has had drastic implications on the law of surrogacy contracts.

Full article available here.




Further Standing Lessons
VOLUME 89

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
VOLUME 89

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
VOLUME 89

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
VOLUME 85

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
VOLUME 87

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
VOLUME 87

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
VOLUME 87

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
VOLUME 87

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
Volume 86

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
Volume 86

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.




Community as a Redistricting Principle: Consulting Media Markets in Drawing District Lines
Volume 86

Jason C. Miller

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.

Full article (.pdf) available here.




Bottom-Up or Top-Down? Removing the Privacy Law Obstacles to Healthcare Reform in the National Healthcare Crisis
Volume 84

John W. Hill, Arlen W. Langvardt & Jonathan E. Rinehart

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.

Full article (.pdf) available here.




The Uses and Abuses of Religion in Child Custody Cases: Parents Outside the “Wall of Separation”
Volume 84

Josh Press

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.

Full article (.pdf) available here.




The Unabomber Revisited: Reexamining the Use of Mental Disorder Diagnoses as Evidence of the Mental Condition of Criminal Defendants
Volume 84

Adam K. Magid

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.

Full article (.pdf) available here.




A Response to Professor Camp: The Importance of Oversight
Volume 84

Leslie Book

In this brief Response to Professor Bryan T. Camp’s Article The Problem of Adversarial Process in the Administrative State, Professor Book situates IRS collection determinations within the broader landscape of administrative law, highlights the principles that administrative law scholars have emphasized in identifying fair agency practice, and applies those principles to the collection context. Professor Book concludes that Professor Camp rightfully highlights some of the problems with Collection Due Process (CDP), but misses its benefits, and thus fails in prescribing the repeal of CDP. Professor Book acknowledges, however, that Professor Camp’s article is a significant achievement for those considering tax collection. Its targeting of CDP’s shortfalls highlights some of the problems of the legislative process and allows us to consider how Congress and the IRS can improve collection rights without sacrificing essential efficiency concerns associated with collecting taxes.

Full article (.pdf) available here.




Rethinking Sports Wagering
Volume 85

Michael C. Macchiarola

Against the backdrop of shrinking tax revenues and growing budget deficits, Rethinking Sports Wagering highlights our nation’s arbitrary and confusing patchwork manner of regulating sports wagering and attempts to begin the dialogue toward a more rational and efficient approach.

The Article hopes to stimulate debate beyond the reflexive moral posturing that has habitually shunned gambling for the last two centuries. Instead, the Article asserts that it is time to give serious consideration to regulating certain styles of sports wager under the nation’s robust federal securities law regime. Structured correctly, such a system could benefit the investing public, the issuing institutions and the various sports leagues. At the same time, it might harmonize the arbitrary and disparate treatment of sports wagering within the different sates and fill the coffers of the federal and state governments.

Full article (.pdf) available here.