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Henderson named one of the most influential people in legal education
Get PDFIndiana University Maurer School of Law Professor Bill Henderson has once again been recognized as one of the most influential people in legal education, but he’s not the only one with ties to the Law School on this year’s list.
The National Jurist ranked Henderson #18 on its list. Kellye Testy, a 1991 alumna of the Law School and president and CEO of the Law School Admission Council, is ranked second
Dean\u27s Desk: Shining a light on the accomplishments of IU Maurer\u27s faculty
Get PDFAs dean of the Indiana University Maurer School of Law, I have the privilege of seeing howour community makes a positive impact on local, state, national, and international affairsevery day.
Our students—deeply involved in their studies—still find time to donate thousands of hoursof pro bono service every single year. Our alumni, 12,000-plus strong, bring pride to ourschool and the legal profession every day. And our faculty, tasked with shaping the attorneysof tomorrow, devote extensive time inside and outside the classroom, ensuring our legacy ofproducing ethical, practice-ready lawyers by the time they graduate.
But our faculty do more than that. I wanted to take this opportunity to shine a spotlight onsome of their recent accomplishments and how those achievements are—and will continue–making a difference in the world around us
Cut the Baby Talk: Negotiating Pregnancy Clauses in Women\u27s Athletic Contracts
Get PDFMany athletic departments, organizations, teams, and leagues have regulations that address the event of pregnancy in their athletes. As interest and participation in women’s sports continues to grow, along with the number and profitability of female athletes, pregnancy clauses are becoming increasingly common in athletic contracts for women.
Pregnancy clauses are an often overlooked section of athletic contracts and sports deals but can have far-reaching consequences for female athletes. Many athletic departments and organizations have attempted to create standardized regulations on how to deal with female athletes who become pregnant; however, these attempts are usually confusing, unclear, and regularly fail to address the individual needs of the athlete that are unique to pregnancy.
Although there are distinct differences between gender identity and biological sex, at this point in time, there has not been a situation where an athlete identifies as a man, competes in men’s athletics, and yet is still capable of becoming pregnant. For this reason, this Article shall treat gender issues as encompassing the sex-specific ability of pregnancy
Counterman v. Colorado: True Threats, Speech Harms, and Missed Opportunities
Get PDFSome Supreme Court cases amount, at their best, to missed opportunities. The Supreme Court’s recent case Counterman v. Colorado resolved, quite dubiously, one particular issue of mens rea. In the course of doing so, however, the Court ignored a variety of clearly presented issues of even greater significance.
The Counterman case involved a state court criminal conviction for issuing a true threat of violence, or more simply, a true threat. True threats, as defined and limited by the Court, comprise a narrow, traditionally constitutionally unprotected category of speech. Nevertheless, the majority in Counterman unnecessarily and unadvisedly extended a substantial measure of constitutional protection to issuing true threats. This result was obtained not through applying the overbreadth or vagueness doctrines, or by working through the logic and purposes of free speech, but by dubiously selecting and imposing a particular mens rea requirement in criminal true threat cases.
The constitutionally required mens rea was held, more specifically, to be that of a subjective level wherein the defendant must consciously understand the statement’s threatening nature and act with reckless disregard of the substantial risk of the speech being construed as a violent threat.6 More simply, the Court required what this Articles refers to as a “conscious reckless disregard” mens rea standard
Lies, Counter-lies, and Disinformation in the Marketplace of Ideas
Get PDFThe First Amendment’s main theoretical account has been as consistent as it has been influential. As John Stuart Mill wrote in On Liberty in 1859, and as First Amendment theory and doctrine, following Mill, have maintained since, the truthfinding process requires that truth and falsity collide in an open marketplace of ideas. Because false speech clarifies truth, and government cannot be trusted to decide for knowledge-seekers what is true, counterspeech is the proper—indeed in most cases the only—remedy for correcting falsity. However, this account itself relies on several false premises. Participants in knowledge production environments are often not motivated by accuracy. False facts and those who spread them are not easily corrected. And some participants, through the dissemination of knowingly false information, seek to frustrate not just the process by which others seek to justify their beliefs, but also their faith that belief justification is even possible.
This Article offers a novel but needed corrective to First Amendment theory by taking a social epistemology approach to considering actors’ motivations in the knowledge production system. In so doing, it introduces and theorizes the concept of counter-lies: disinformation concerning verifiable facts that is shared with the intent to deceive one into believing their mistaken beliefs are true. Despite counterspeech theory, counter-lies do not contribute to the search for truth, nor are they amenable to correction through collision with other ideas. The result of this disconnect is the overvaluation of knowing lies.
Like Mill, its progenitor, the marketplace theory of the First Amendment has failed to take seriously the epistemic duties that an effective truth-seeking process requires and what happens when those duties are breached. The question is what role knowing and demonstrably false statements should play in a First Amendment theory that keeps those issues properly in view
The Private Law of Self-Help
Get PDFIndividuals regularly take steps to protect themselves, their property, and their broader legal interests. They carry pepper spray, have guard dogs, and install fences. Such measures are colloquially deemed methods of self-help. Yet, despite its ubiquity, self-help as a legal concept has been chronically understudied. Consequently, American private law is missing a doctrinally coherent and prescriptively useful framework for self-help. As a matter of legal theory, this conceptual void is problematic in and of itself; the doctrinal incoherence stemming from this analytical gap decreases the law’s stability and undermines its predictability.
But the concern is not merely theoretical. The magnitude of intentional and collateral damage incurred due to this conceptual void has grown intolerable. Corporate-scale and technologically automated unilateral actions have only heightened the need for a theory of self-help. By contextualizing self-help within the civil recourse system, this Article provides the much-needed conceptual framework for a private law of self-help. It relies on the New Private Law research framework and on Civil Recourse Theory to delineate the bounds, purposes, and requirements of self-help in modern society.
This Article provides an intensional framework of self-help that may be used in ex ante decision-making. In so doing, it displaces the descriptively- and prescriptively-lacking extensional ex post method of determining the lawfulness of particular self-help measures. The Article also frames self-help as a substantive body of law with its own prescriptive judgements, even in cases of first impression. Thus, the Article provides a normatively useful and prescriptively necessary alternative to the status quo in which self-help is commonly seen as a vacuous or meaningless concept
Expecting Medication Surveillance
Get PDFIn response to federal financial incentives and mandates, all fifty states, the District of Columbia, and three U.S. territories administer electronic prescription drug monitoring programs (PDMPs). Federal and state policymakers justified the implementation and enhancement of ubiquitous prescription drug monitoring by contending that expansive state drug surveillance was a necessary weapon in the war against the American drug overdose crisis. As is often the case with tools designed for law enforcement surveillance, however, PDMPs have proven susceptible to mission creep. Although pioneer PDMPs were paper-based systems that limited their surveillance to a narrow class of heavily regulated controlled substances, modern PDMPs are powered by sophisticated, algorithm-driven software platforms. Most state PDMPs have the authority to monitor all controlled substances as well as noncontrolled “drugs of concern.” Modern PDMPs also share their voluminous, sensitive health information across state lines. This Essay argues that the need for legal reform of these dragnet state prescription monitoring systems is urgent given the ongoing attack on medication abortion and gender-affirming care as well as the heightened policing of pregnancy behaviors post-Dobbs v. Jackson Women’s Health Organization
The New Drug War
Get PDFAmerican policymakers have long waged a costly, punitive, racist, and ineffective drug war that casts certain drug use as immoral and those who engage in it as deviant criminals. The War on Drugs has been defined by a myopic focus on controlling the supply of drugs that are labeled as dangerous and addictive. The decisions as to which drugs fall within these categories have neither been made by health agencies nor based on scientific evidence. Instead, law enforcement agencies have been at the helm of the drug war advocating for and enforcing prohibition.
The drug war has been a failure on all counts. American taxpayers have invested trillions of dollars in the war, yet the United States continues to witness record-setting numbers of drug overdose deaths every year. The drug war has been used as a tool to disenfranchise and incarcerate generations of individuals minoritized as Black. Black Americans are nearly six times more likely to be incarcerated for drug-related offenses than their white counterparts, notwithstanding that substance use rates are comparable across those populations.
The public rhetoric concerning drug use has notably changed in recent years. Many policymakers have replaced the punitive, law-and-order narratives of the Old Drug War with progressive, public-health oriented language, which suggests that the Old Drug War has ended. We, however, caution against such a conclusion. This paper examines three categories of laws and policies that attend to individuals who use drugs under our country’s new, and purportedly public-health-centric, approach: (1) laws that increase surveillance of certain drugs or those who use them; (2) the criminalization and civil punishment of the symptoms or behaviors related to drug use; and (3) laws that decrease access to treatment and harm reduction programs.
Our assessment of these policies demonstrates that the War on Drugs is not over. It has merely been retooled, recalibrated, and reframed. The “New” Drug War may be concealed with public-health-promoting rhetoric, but it is largely an insidious re-entrenchment of the country’s longstanding, punitive approach to drug use