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Announcing New Faculty Chairs, Professorships, and Fellowships
Get PDFThe Indiana University Maurer School of Law announced today (May 24) that 14 of its faculty members—including three new additions to the school’s faculty—have been awarded new chairs, professorships, and fellowships beginning this summer
Criminogenic Risks of Interrogation
Get PDFIn the United States, moral minimization is a pervasive police interrogation tactic in which the detective minimizes the moral seriousness and harm of the offense, suggesting that anyone would have done the same thing under the circumstances, and casting blame away from the offender and onto the victim or society. The goal of these minimizations is to reinforce the guilty suspect’s own rationalizations or “neutralizations” of the crime. The official theory—posited in the police training manuals that recommend the tactic—is that minimizations encourage confessions by lowering the guilt or shame of associated with confessing to the crime. Yet the same logic suggests that minimization would also lower the internal, psychological costs of committing future crimes. We therefore argue that the tactic carries criminogenic risks. We draw strong support from numerous criminal law and social science theories – neutralization, moral disengagement, marginal offender, restorative justice, entrapment, social norms and legal legitimacy—and find each theory or doctrine consistent with our conclusion that minimization disinhibits criminality. In weighing the criminogenic risks of minimization against its unproven promise of securing confessions, we find minimization practices unjustifiable. We raise and respond to counterarguments and conclude that the use of moral minimization in interrogation should cease given the existence of alternative interrogation approaches and absent empirical evidence of its effectiveness. In the alternative, we suggest some avenues to curtail the practice
Privatizing Family Leave Policy: Assessing the New Opt-in Insurance Model
Get PDFFederal law fails to guarantee new parents or family caregivers paid time off from work. A growing number of blue-leaning states have addressed this gap by enacting comprehensive paid family and medical leave laws, typically funded by a small payroll tax. A new—and quite different—approach is expanding rapidly in red-leaning states: authorization of commercial “Family Leave Insurance” to be marketed to employers. In other words, this is an opt-in privatized approach to family leave policy.
This Article, written for a symposium held by the Seton Hall Law Review, offers the first analysis in the legal literature of opt-in Family Leave Insurance laws. These laws anticipate that insurance companies will likely add “family leave” to group short-term disability policies (an existing insurance product that provides partial salary reimbursement to employees who take time off work for medical needs). However, only about 40% of American workers, and just 22% of low-wage workers, receive short-term disability benefits from their employers—and most policies replace only 50-60% of regular wages. Providing paid leave at the low reimbursement rate typical of short-term disability policies can actually exacerbate inequality by making it easier for relatively affluent workers to take extended time off but still failing to provide sufficient support for low-wage workers to do so. By contrast, states that have enacted comprehensive paid leave laws, funded by a payroll tax, typically cover virtually all workers, and most replace 80-95% of regular wages, up to a cap set around the median wage.
This Article analyzes the new privatized Family Leave Insurance model, then suggests provisions that would help opt-in policies actually meet the needs of new parents and family caregivers. These include specifying a reasonably ample period of benefits and level of wage replacement, and ensuring that definitions of “family” reflect the diversity of contemporary families. The Article also explores potential adverse selection challenges—both within workplaces and across workplaces—that may arise under an opt-in approach. Because the risk pool will almost certainly be less varied than under a public program, private Family Leave Insurance may well provide less generous benefits at a higher per-person cost than fully-public policies. Authorization of opt-in insurance is better than nothing, but, as this Article demonstrates, it is likely that both workers and businesses are better served by comprehensive paid leave laws
Defining Disparate Treatment: A Research Agenda for our Times
Get PDFBoth statutory and constitutional laws prohibiting discrimination forbid actions taken on the basis of certain traits. But rarely are those traits specifically defined. As a result, courts fill in these definitions and do so with consequential results. The boundaries they draw often determine whether or not a law, policy, or action constitutes disparate treatment on the basis of a legally protected trait. As disparate treatment calls for a significantly heavier burden of justification than does disparate impact, the key move putting laws, policies, and the acts of individuals into one category or the other happens in this definitional step.
Defining disparate treatment also requires a clear understanding of what taking action “because of” or “on the basis of” a protected trait entails. While the Supreme Court’s 2020 decision in Bostock v. Clayton County took an initial stab at this mechanism question, many ambiguities remain. A clear understanding of disparate treatment requires that we answer both the definition question and the mechanism question. Yet doing so is not easy, a fact that has not been adequately appreciated. To make progress on defining disparate treatment, this Article describes four puzzles, and in so doing develops a research agenda for our times
What\u27s Not Natural Phenomena? Let\u27s Consider a Three-Step Innovative Concept Test for Composition of Matter Claims
Get PDFBiotechnology innovation is rapidly growing, especially in the realm of biotech. This growth leads to questions about patent subject matter eligibility of natural phenomena. For example, currently the human genome and microbiome are being extensively studied, bacteriophages are being edited, animals are being cloned, and CRISPR is widespread. Additionally, composition of matter patent claims give the most protection to patent holders. Therefore, knowing when a natural phenomenon veers into human innovation is important for courts, lawyers, and innovators in the era of biotechnology and genetic engineering.
Part I discusses the history of Supreme Court cases on natural phenomena subject matter eligibility, highlighting the important laws set forth by the Supreme Court. Part II discusses how the Federal Circuit has applied five-factor and two-step tests established in Diamond v. Chakrabarty and Mayo Collaborative Services v. Prometheus Laboratories, Inc., respectively. In addition, Part II discusses the lack of clarity the courts have when applying the second step of the test established in Mayo. Lastly, Part III proposes a three-step innovative concept test specifically for composition of matter claims directed toward natural phenomena and applies the innovative concept test to the claims directed at cloned animals in In Re Roslin (Edinburgh).
Importantly, this paper focuses solely on composition of matter claims for natural phenomena. However, in Part I and Part II, some cases revolving around methods on laws of nature, natural phenomena, and abstract ideas are discussed
Committing to Agency Independence
Get PDFOne of the enduring challenges in politics is that there is little in the way of binding commitments. It is not as if the president and the Speaker of the House can write an effective contract and it is hard to imagine any court ever enforcing it. A commitment by a political actor is therefore only as good as it is credible—that is, if it is in the interests of the actor to keep it, possibly due to mechanisms put in place to induce just those commitments. All this makes analytical tools like game theory well-suited to understanding politics, especially relationships between the parts of the government. This methodology is quite common in political science and economics, and has been used, in a rough way, by courts as well
The Future of Anti-Poverty Legislation
Get PDFThe era of big-government COVID relief is over. The initial pandemic- relief legislation, followed by two years of Democratic control in Washington, seemed to herald the expansion and modernization of the U.S. safety net. But sustained reform proved elusive. Now that this window of opportunity has closed, it’s time to step back and take stock. For those who focus on anti-poverty programs, one question persists: The next time there is such an opportunity to strengthen anti-poverty programs through legislation, how should federal law change?
This Article suggests the answer to that question lies in lessons from recent experience, including, but not limited to, the COVID-19 pandemic. Crisis-induced lawmaking often arises after little deliberation or careful research. It can be ill-timed and badly targeted. When Congress lurches from crisis to crisis, legislation—and the programs that legislation creates—can go for years without being updated. As those laws drift, they become less effective, especially when it comes to alleviating poverty.
How can the federal law that governs and structures social assistance in the United States become more dynamic? This Article answers that question by proposing that legislators incorporate legislative triggers and indexing— what we call “automatic fiscal policies”—to make means-tested programs more responsive to changing economic and social circumstances. Legislating in ways that promote automatic fiscal policies makes anti-poverty programs more responsive not only to economic downturns, but also to more gradual changes such as the changing nature of work, regional economic fluctuations, and climate change. This Article envisions a future of anti-poverty legislation where anti-poverty programs are dynamic—not succumbing to policy drift and primed to withstand and adapt to future challenges