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

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

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

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.