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Fictional Pleas
Get PDFA fictional plea is one in which a defendant pleads guilty to a crime he has not committed, with the knowledge of the defense attorney, prosecutor, and judge. With fictional pleas, the plea of conviction is detached from the original factual allegations against the defendant. As criminal justice actors become increasingly troubled by the impact of collateral consequences on defendants, the fictional plea serves as an appealing response to this concern. It allows the parties to achieve parallel aims: the prosecutor holds the defendant accountable in the criminal system, while the defendant avoids devastating noncriminal consequences. In this context, the fictional plea is an offshoot of the “creative plea bargaining” encouraged by Justice Stevens in Padilla v. Kentucky. Indeed, where there is no creative option based on the underlying facts of an allegation, attorneys must turn to fiction. The first part of this Article is descriptive, exploring how and why actors in the criminal justice system—including defendants, prosecutors, and judges—use the fictional plea for the purposes of avoiding collateral consequences. This Article proposes that in any individual case, a fictional plea may embody a fair and just result—the ability of a defendant to escape severe collateral consequences and a prosecutor to negotiate a plea with empathy.
But this Article is also an examination of how this seemingly empathetic practice is made possible by the nature of the modern adversarial process in which everything is a bargaining chip. What does it mean that all parties in the criminal justice system agree to allow a lie to become fact? What does the fictional plea tell us about the role of truth in our adversarial structure? Faced with the moral quandary of mandatory collateral consequences, the system adjusts by discarding truth and focuses solely on resolution. In this sense, fictional pleas serve as a case study in criminal justice problem solving. The fictional plea lays bare the soul of an institution where everything has become a bargaining chip: not merely collateral consequences, but truth itself. Rather than a grounding principle, truth is nothing more than another factor to negotiate around
Drone Invasion: Unmanned Aerial Vehicles and the Right to Privacy
Get PDFSince the birth of the concept of a legally recognized right to privacy in Samuel D. Warren and Louis D. Brandeis’ influential 1890 law review article, “The Right to Privacy,” common law—with the aid of influential scholars—has massaged the concept of privacy torts into actionable claims. But now, one of the most innovative technological advancements in recent years, the unmanned aerial vehicle, or drone, has created difficult challenges for plaintiffs and courts navigating common law privacy tort claims.
This Article explores the challenges of prosecution of the specific privacy tort of intrusion upon seclusion involving nongovernmental use of drone technology. Specifically, it proposes that drone technology must be an added consideration when determining the two elements of the intrusion upon seclusion privacy tort. The current common law invasion of privacy tort analysis is not sufficient to protect an individual’s right to privacy for torts committed using the modern and complex technology of drones. Thus, consideration of drone technology must be weaved into analyzing whether the plaintiff had a reasonable expectation of privacy and whether the intrusion was highly offensive to a reasonable person.
Further, this Article analyzes and evaluates the practical problems that arise in prosecuting intrusion upon seclusion claims in the drone-age, and how certain states’ statutes address or fail to address these issues. From determining the owner of the drone so as to name a defendant, to proving intent, it is almost impossible for a plaintiff to survive to establish a successful intrusion upon seclusion claim. Moreover, this Article suggests statutes may combat many of the problems in prosecuting drone-related privacy tort claims by incorporating a rebuttable presumption that the defendant intruded upon the plaintiff’s seclusion once the plaintiff has alleged a prima facie case. This presumption is like the presumptions found in many state statutes regarding physical damage from torts committed with aircrafts against a person or property. Thus, because the defendant, a prudent drone owner, would be in the best position to disprove the intrusion, the defendant could rebut the claim by introducing such evidence as flight path data, photo or video footage, or possession at the time of the alleged intrusion.
With the constantly evolving technology and innovation in the age of drones, prosecuting William Prosser’s concept of the “right . . . ‘to be let alone’” when an individual’s right to privacy is violated comes with many challenges. Although other scholarship discusses the relationship between drones and privacy torts, this Article is novel in that it explores the practical issues of prosecuting intrusion upon seclusion claims in the age of drones. It further recommends considerations for courts and legislators when the right to privacy and drones collide
Money That Costs Too Much: Regulating Financial Incentives
Get PDFMoney may not corrupt. But should we worry if it corrodes? Legal scholars in a range of fields have expressed concern about “motivational crowding-out,” a process by which offering financial rewards for good behavior may undermine laudable social motivations, like professionalism or civic duty. Disquiet about the motivational impacts of incentives has now extended to health law, employment law, tax, torts, contracts, criminal law, property, and beyond. In some cases, the fear of crowding-out has inspired concrete opposition to innovative policies that marshal incentives to change individual behavior. But to date, our fears about crowding-out have been unfocused and amorphous; our field lacks the language we need to speak precisely about these behavioral phenomena, and we have not examined when and why motivational crowding-out should prompt us to discontinue or temper incentive-based schemes. Without a clear and nuanced picture of the processes, harms, and benefits of crowding-out, we may well be missing the mark.
This Article canvasses the range of legal areas where crowding-out concerns arise, and it newly illuminates the specific harms that may be attributable to crowding-out effects. These hazards include reduced autonomy in the presence of incentives, a distinct set of behavioral inefficiencies, and the potential degradation of individual or social values. But this Article also challenges the view of crowding-out as uniformly harmful, offering an alternative vision of potential crowding-out benefits, such as crowding out invidious motivations, increasing the predictability of agent activity, and bolstering the efficiency of future incentives. These benefits suggest that the precautionary principle, which would counsel against using incentives where crowding-out is possible—is inappropriate for this field.
The Article also proposes a novel taxonomy to help guide regulatory responses to incentives that cause crowding-out. Different categories of incentives present different justifications for regulatory intervention and redesign, including autonomy concerns, efficiency concerns, and negative externalities imposed on third parties. By organizing incentives based on the relationship between the principal and agent, we can identify opportunities for regulators and incentive architects to redesign or limit incentive programs, to leave incentives in place, or to consider discontinuing incentive-based policies when money indeed “costs too much” in motivation. Associat
A Corporate Duty to Rescue: Biopharmaceutical Companies and Access to Medications
Get PDFControversies regarding the pricing of biopharmaceutical products are pervasive. Patients must choose between treatment and rent, prescriptions go unfilled, and health systems are forced to restrict access to life-saving medications— all because of cost. Though there is often consensus that these issues are problematic, there is disagreement as to what are appropriate solutions and who has responsibility to bring about those solutions. Most efforts to address biopharmaceutical pricing concerns focus on governmental regulation. This Article has a different focus. It provides a legal and normative analysis of a form of corporate self-regulation that could help address access and pricing concerns—a moral “corporate duty to rescue” (CDTR). Scholars in health law, business ethics, and bioethics have proposed that a CDTR applies to biopharmaceutical companies regarding access to their products. Rescue efforts are conceived as including product donations, price reductions, or tinkering with intellectual property management. This Article advances three primary arguments. First, analyzing pertinent law and principles, it argues that corporate managers and directors have the legal discretion to discharge a CDTR. Second, while there is legal discretion to discharge a CDTR, this Article argues that it is unclear what this moral duty demands of biopharmaceutical companies. Its application to the drug pricing and access context is not straightforward, morally speaking. Third, this Article argues that focus on a CDTR in the biopharmaceutical context, in some instances, may be misplaced. A duty to rescue allocates responsibility for rescue on the basis of who can help now and not on the basis of who has historically done what. Yet, wronging others generates significant reasons for the mitigation of that wrong to be the wrongdoer’s special moral responsibility. If there is culpable conduct, focus on a CDTR will fail to hold companies accountable, thereby obfuscating morally problematic corporate conduct. As access and pricing problems are at root normative, this Article contributes to larger debates both about what drug manufacturers owe patients regarding product access as well as what sorts of self-regulatory changes they justifiably could be urged to implement
Class of 2019, Indiana University Maurer School of Law
No full textNames of graduates are located below their individual photograph on the image.https://www.repository.law.indiana.edu/composite/1076/thumbnail.jp
2019/20 Indiana University Maurer School of Law Faculty
No full text(Left to Right) Row one: Christina Ochoa, Luis Fuentes-Rohwer, Kenneth G. Dau-Schmidt, Mark D. Janis, Jayanth Krishnan, Shana Wallace, Austen Parrish, Margaret Kiel-Morse, Sophia Goodman, William D. Henderson Row two: Amy G. Applegate, Jennifer Bryan Morgan, Norman J. Hedges, Ashley Ahlbrand, Keith A. Buckley, Jeannine Bell, Robert E. Downey, Nona Watt, Michael Maben, Leandra Lederman, Jennifer S. Prusak Row three: Susan Williams, Cynthia Reichard, Jody L. Madeira, Mark E. Need, Charles Gardner Geyh, Kevin D. Brown, Inge Van der Cruysse, Cindy Dabney, Aviva A. Orenstein, Gabrielle L. Goodwin Row four: Deborah Widiss, Joseph L. Hoffmann, Jeffrey Evans Stake, Ryan W. Scott, Steve Sanders, Joseph A. Tomain, Tim Morrison, Kimberly Mattioli, Michael Mattioli, Timothy William Watershttps://www.repository.law.indiana.edu/facgrp/1026/thumbnail.jp
Personal Jurisdiction: The Transnational Difference
Get PDFThis Article engages with some of the key debates that have emerged among international Iaw and civil procedure scholars by examining the flurry of recent transnational cases that have become a common feature on the U.S. Supreme Court\u27s docket. It makes three principal contributions. First, it explains how the recent decisions involving persona jurisdiction should be understood within, and partly limited to, their international contexts. Disputes in involving non-resident foreign defendants raise different considerations than those involving defendants in the United States, and this Article canvasses those differences. If a concern previously was that courts gave too short shrift to the international aspects of a case, the concern now is that lower courts may make the reverse mistake by overstating the applicability of recent decisions to the domestic, interstate context. Second, it details how international law imposes modest constraints on national court adjudicatory authority, and pushes back on recent attempts to reimagine public international law. It shows how the Fourth Restatement of the Foreign Relations Law of the United States-which asserts that personal jurisdiction in civil cases is unregulated under international law -advances a position inconsistent with the overwhelming weight of authority. The Restatement\u27s attempt to fashion new customary law and reshape the existing legal regime in the personal jurisdiction arena is problematic, and this Article serves as a counterpoint to that effort. Third, it describes an interplay between unilateral domestic extraterritorial regulation and international lawmaking, and aligns personal jurisdiction with the closely-related area of legislative jurisdiction. Constraints on broad jurisdictional assertions in transnational disputes may be one of the predicates necessary to spur U.S. multilateral engagement
