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Speech Inequality After Janus v. AFSCME
Get PDFThis Article explores the growing divide between the Roberts Court’s treatment of the free speech rights of wealthy individuals and corporations in campaign finance cases as compared to its treatment of the rights of public-sector labor unions and their members. First, it highlights some internal contradictions in the Janus Court’s analysis. Then, it discusses the growing—yet mostly ignored—divergence in the Court’s treatment of corporate and labor speakers with respect to the use of market influence to achieve political influence.
The Article has two Parts. In Part I, I explain how the Court reached its decision in Janus before critiquing the decision’s internal logic on several points. And in Part II, I contrast the Roberts Court’s approach in Janus to its approach in First Amendment challenges to campaign finance law, arguing that the Court’s solicitude towards the First Amendment rights of wealthy or corporate speakers is in tension with its cramped view of the First Amendment rights of unions and union members.
NOTE: 2018 Stewart Lecture in Labor and Employment Law, Indiana University Maurer School of Law, Bloomington, Indiana
Comprehensive Criminal Procedure, 5ed.
No full textComprehensive Criminal Procedure, Fifth Edition is perfect for all introductory courses in criminal procedure law (including both investigation and adjudication courses, as well as comprehensive and survey courses). The casebook focuses primarily on constitutional criminal procedure law, but also covers relevant statutes and court rules. The casebook is deliberately challenging—it is designed for teachers who want to explore deeply not only the contemporary state of the law, but also its historical and theoretical foundations. The casebook incorporates a particular emphasis on empirical knowledge about the real-world impacts of law-in-action; the significance of race and class; the close relationship between criminal procedure law and substantive criminal law; the cold reality that hard choices sometimes must be made in a world of limited criminal justice resources; and, finally, the recognition that criminal procedure law always should strive to achieve both fairness to the accused and justice for society as a whole.https://www.repository.law.indiana.edu/facbooks/1250/thumbnail.jp
Securities Litigation and Enforcement in a Nutshell
No full textThe 2nd edition of the Securities Litigation and Enforcement Nutshell focuses on an area of law that burgeoned nearly two decades ago after the accounting and corporate governance scandals at Enron, WorldCom, and other large publicly traded companies. It is an area of law that has only continued to expand with the 2008 financial crisis and subsequent legislation, including the Dodd-Frank Act of 2010 and the JOBS Act of 2012, and with several recent rulings by the U.S. Supreme Court. The Nutshell examines private, SEC, and criminal enforcement of the federal securities laws, with an emphasis on the elements that establish securities fraud, and the doctrinal and practical issues that typically emerge in prosecuting or defending such claims.https://www.repository.law.indiana.edu/facbooks/1269/thumbnail.jp
The Legal Feasibility of Ratification of the United Nations Convention on Contracts for the International Sale of Goods (CISG) by Saudi Arabia: A Comparative Study Between CISG and Islamic Law
Get PDFThis study examines the legal feasibility of ratification of the United Nations Convention on Contracts for International Sale of Goods (CISG) by Saudi Arabia as well other Islamic countries that apply Islamic law (Sharia). To understand the feasibility, this study is divided in three parts. Part One serves as a brief introduction to the CISG and Islamic Law (which is the governing contract law in Saudi Arabia). Part Two provides a comparison between the provisions of the CISG and Islamic Law, assessing whether they conflict or are compatible with one another. It is challenging to examine the entire Convention, so this section examines four issues: (a) interest; (b) the penalty clause; (c) deferring of prices and goods in sale contracts; and (d) open price contracts. Part Three examines the possibilities of Islamic states, especially Saudi Arabia, ratifying the CISG and determines the obstacles preventing them from doing so. This section also explores the advantages and disadvantages of ratification of the CISG, and it closely looks at the practical benefits of the ratification of CISG by Saudi Arabia
The Debt Collection Pandemic
Get PDFTo curb the rapid spread of the coronavirus set to overwhelm the United States\u27 healthcare system, in mid-March 2020, the federal government declared a national emergency. Many states followed suit by implementing shelter-at-home orders and people began social distancing across America. As of this writing, the United States\u27 reaction to the unique and alarming threat of COVID 19 has partially succeeded in slowing the virus\u27s spread. Saving people\u27s lives, however, has come at a severe economic cost. Economic activity plummeted. Unemployment numbers soured to figures not seen since the Great Depression and countless other people saw their income disappear.
Americans\u27 economic anxiety has understandably spiked. With no end in sight to the crisis, people have feared they would be unable to meet their basic expenses, such as buying food and paying for utilities. Those who have lost their jobs also now have had to find money to pay for health insurance. And car, house, and rent payments would be coming due soon and then again every month, regardless of whether people still had income. These worries were more acute among minority communities and lower-income households, who already faced concerns about their financial stability before the crisis.
People\u27s anxieties about money have necessarily included what might happen if they could not cover already outstanding debts. In addition to auto loans and mortgages, debts like credit cards, medical bills, student loans, and past-due taxes are high on the minds of many households. If people defaulted on any of these debts, creditors and debt collectors could garnish their bank accounts and wages, repossess their cars, and foreclose on their homes and other property. The nearly 70 million Americans with debts already in collection are facing heightened anxiety about their inability to pay. As with people\u27s worries about money generally, these fears continue to be more acute for communities of color. Black and Latinx Americans are sued by creditors and debt collectors more often than others, and lawsuits against them are more likely to end with default judgments that lead to garnishments. They also are subject to heightened policing that saddles them with parking tickets, court fees, and other government debts that force them into modem-day debtors\u27 prison.
The coronavirus pandemic is set to metastasize into a debt collection pandemic. The federal government can and should do something to put a halt to debt collection until people can get back to work and earn money to pay their debts. Yet it has done nothing to help people deal with their debts. Instead, states have tried to solve issues with debt collection in a myriad of patchwork and inconsistent ways. These efforts help some people and are worthwhile. But more efficient and comprehensive solutions exist. Because American families\u27 finances are unlikely to recover as soon as the crisis ends, debt collection brought by the COVID-19 crisis also will not dissipate anytime soon. Even after the crisis ends, the need to implement comprehensive, longer-lasting solutions will remain. As we detail below, these solutions largely fall on the shoulders of the federal government, though state attorney generals have the necessary power to help people effectively. If the government continues on its present course, a debt collection pandemic will follow the coronavirus pandemic
States Should Quickly Reform Unemployment Insurance
Get PDFCOVID-19 is causing mass layoffs and related economic hardship, as well as budget crises for state and local governments. This article is part of Project SAFE (State Action in Fiscal Emergencies), an academic effort to help states weather the fiscal crisis by providing policy recommendations backed by research. This article will focus on how state governments should reform unemployment insurance (UI) eligibility and benefits and the taxes funding these programs
Understanding Illicit Insemination and Fertility Fraud from Patient Experience to Legal Reform
Get PDFRecently, several cases have been filed in North America and Europe alleging that fertility physicians inseminated former patients with their own sperm only to have this conduct come to light decades later when their unsuspecting adult children use direct-to-consumer genetic tests and learn that they are not biologically related to their fathers and often that they have multiple half-siblings. For instance, Donald Cline of Indianapolis, Indiana, has over sixty doctor-conceived children, with more continuing to come forward. Although these cases induce disgust, it has thus far proven difficult to hold these physicians legally accountable because their conduct falls within gaps in existing civil and criminal laws. This Article explores the legal contours of fertility fraud cases involving illicit physician inseminations, explaining why it falls through gaps in existing criminal and civil law and why it is essential to take whatever measures are necessary to hold physicians accountable. Part I discusses six physicians who have thus far faced criminal or civil charges for their conduct in North America and explores how artificial insemination has long been a stigmatized practice cloaked in secrecy. Part II discusses how fertility fraud violates various ethical and legal interests of female and male former patients and their doctor-conceived children. Part III assesses how Cline\u27s illicit inseminations affected parents and progeny and how Cline\u27s progeny learn of new genetic connections, what they think of Cline and his motivations, how they derive support from one another, their reactions to criminal proceedings against Cline, and why they regard a legislative fertility fraud bill as an ideal outcome. Part IV analyzes why it is difficult to hold physicians criminally and civilly liable under existing law, including excerpts from an interview with the prosecutor in the Cline case. Finally, Part V discusses successful efforts to overcome these difficulties through passing fertility fraud legislation in Indiana and Texas
Fee-Shifting Statutes and Compensation for Risk
Get PDFA law firm that enters into a contingency arrangement provides the client with more than just its attorneys’ labor. It also provides a form of financing, because the firm will be paid (if at all) only after the litigation ends; and insurance, because if the litigation results in a low recovery (or no recovery at all), the firm will absorb the direct and indirect costs of the litigation. Courts and markets routinely pay for these types of risk-bearing services through a range of mechanisms, including state feeshifting statutes, contingent percentage fees, common-fund awards, alternative fee arrangements, and third-party litigation funding.
This Article mines those risk-compensation mechanisms for lessons about the proper interpretation of federal fee-shifting statutes. Those statutes encourage private plaintiffs to enforce a limited set of laws, including civil rights statutes, by authorizing the court to award a reasonable attorney’s fee to the prevailing party.
Although a law firm cannot receive a court-ordered fee shift unless its client prevails, current doctrine prohibits compensation for risk in federal fee-shifting awards. This Article argues that this prohibition should be eliminated, and to that end, it evaluates specific methods of including compensation for risk in federal fee-shifting awards
The Folly of Credit as Pandemic Relief
Get PDFWithin weeks of the coronavirus pandemic appearing in the United States, the American economy came to a grinding halt. The unprecedented modern health crisis and the collapsing economy forced Congress to make a critical choice about how to help families survive financially. Congress had two basic options. It could enact policies that provided direct and meaningful financial support to people, without the necessity of later repayment. Or it could pursue policies that temporarily relieved people from their financial obligations but required that they eventually pay amounts subject to payment moratoria later.
In passing the CARES Act, Congress primarily chose the second option. This option reflects a belief that offering people credit can bring them meaningful relief because it assumes that people will have the ability to pay back the loan as it becomes due. The assumption that people will be able to repay credit masquerading as “relief” in the wake of the pandemic is a serious error that will have enduring negative consequences.
In short, Congress got the balance between providing true money versus what amount to credit products to people fundamentally backwards. But given that, unfortunately, the effects of the pandemic likely will continue for months, if not years, it is not too late for Congress to adopt a family financial well-being approach to relief that provides meaningful, widespread, and expanded direct payments to households in distress
