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Mandating Board Diversity
Get PDFCalifornia’s Assembly Bill 979 (AB-979) requires companies that are based in California to have a specified minimum number of directors from underrepresented communities. A “director from an underrepresented community” is defined as an individual who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who selfidentifies as gay, lesbian, bisexual, or transgender. AB-979 received much attention for being the first law to mandate greater diversity on corporate boards in terms of race and sexual orientation. Senate Bill 826 (SB-826), which was introduced two years prior, was the first U.S. legislative effort to mandate greater gender diversity on corporate boards. AB-979 and SB-826 have received both intense praise and vehement criticism. The debate over the California board diversity bills raises fundamental questions about the proper role of the state in using its power to regulate corporations to advance public values. In this Article, I summarize and respond to the various legal challenges that have been raised against California’s board diversity bills and argue that the precedent-setting efforts of the California legislature are consistent with the original design of corporate law in the United States, which is built on a model of federalism and state competition
Distinguished Service Awards Presented to Four Indiana Law Alumni
Get PDFFour members of the Indiana Law community were honored Friday (September 23) with Distinguished Service Awards. Javier Becerra ’17; Shontrai Irving ’03; Laura Walda ’09; and Mark Wright ’89, received their respective awards during a moving ceremony in front of a standing-room only crowd in the DeLaney Moot Court Room, though circumstances prevented Walda and Wright from attending in person.
“These awards are especially meaningful and timely to all of us at the Law School because of our commitment to instilling public service in our students,” said Interim Dean Christiana Ochoa. “Every one of our students commits to an aspirational goal of 60 hours of pro bono service during their three years of law school, so it’s incredibly gratifying to recognize alumni who set such a great example for our students after they enter the legal profession.
Life After Google v. Oracle: Three Reflections on a Theme
Get PDFIn 2004, Professor Leaffer published an article titled Life after Eldred: The Supreme Court and the Future of Copyright. He wrote about three cases decided in or after 2001 to provide a snapshot of the Supreme Court’s position on copyright issues. This Article discusses three reflections on this theme. The first reflection flows directly from Google. It discusses fair use in Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith, as well as text and data mining for artificial intelligence uses. This Article then reflects on Arnstein v. Porter’s lessons for modern copyright infringement law. Finally, it reflects on the current state of software protection at the intersection of patent and copyright law in light of Alice Corp. Pty. v. CLS Bank Int’l
Should Supreme Court Justices Fear Access to Their Papers? An Empirical Study of the Use of Three Archival Collections
Get PDFSusan deMaine\u27s contribution to this volume is Should Supreme Court Justices Fear Access to Their Papers? An Empirical Study of the Use of Three Archival Collections. Co-authored by Benjamin J. Keele.
US. Supreme Court justices typically donate their working papers to archives upon their retirement, often with lengthy embargoes. 1 Researchers have debated whether the justices should be required to retain and disclose their papers as government · records, but there has been little study of how the papers are used in scholarly and journalistic discussions of the Court.· This empirical study examines how the papers of Justices William Brennan, Thurgood Marshall, and Harry Blackmun are used via citations in books and academic law journal articles. We find that most citations to the papers support discussions of the justices\u27 views on the law along with deliberations and negotiations when deciding cases, precisely the kinds of uses that show the value of transparency. To address constitutional objections to mandated disclosures, we propose an incentive grant program that benefits the archives receiving justices\u27 collections. This program would encourage justices to donate their papers with relatively short embargoes, ideally fifteen years after retirement from the Court.https://www.repository.law.indiana.edu/facbooks/1303/thumbnail.jp
Case Files from the Late Hon. Michael S. Kanne Donated to the Jerome Hall Law Library
Get PDFThe case files of the late Judge Michael S. Kanne have been donated to the Indiana University Maurer School of Law’s Jerome Hall Law Library.
Kanne, a 1968 graduate of the Law School, served on the U.S. Court of Appeals for the Seventh Circuit from 1987 up until his death in June 2022. Prior to his elevation to the Seventh Circuit, Judge Kanne served on the bench of the U.S. District Court of the Northern District of Indiana.
Judge Kanne’s files span the entirety of his service on the Seventh Circuit, and contain papers regarding opinions, concurrences, and dissents authored and joined by the judge
The Limits of Regulation by Insurance
Get PDFInsurance is an enormously powerful and beneficial method of spreading risk and compensating for loss. But even insurance has its limits. A new and misleading aspiration for insurance—that it also can and often does substitute for or significantly complement health and safety regulation—is increasingly in vogue. This vision starts from the uncontroversial recognition that insurers typically adopt measures designed to counteract “moral hazard,” the tendency of insurance to blunt policyholders’ incentives to take care. But proponents of this vision go on to contend that the risk-reducing potential of insurance is significantly more extensive than is traditionally imagined, because insurers are strategically positioned to induce their policyholders to embrace precautions, procedures, policies, or training regimens that decrease the incidence of loss. Proponents of this new “regulation thesis” often dramatically summarize these points by describing insurance as a form of private “regulation” or “loss prevention,” attempting to trade on the positive optics of these notions. Enamored with this idea, commentators, activists, and lawmakers have advanced various proposals to mandate the purchase of insurance or otherwise intervene in insurance markets to address a broad range of modern social ills, including police misconduct, gun violence, cyberattacks, and harms caused by artificial intelligence. Building on emerging criticism of this regulation thesis as well as increasing empirical evidence questioning its accuracy, this Article argues that these regulatory aspirations for insurance are over-optimistic. Creating less loss than insurance otherwise might have created is not regulation or loss prevention. Rather, it is damage-control, and that is what insurance devices designed to combat moral hazard almost always involve. Insurers face a daunting set of obstacles to further reducing policyholder risk below what it would be in the absence of insurance. In short, insurance has substantial limits as a solution for the failures of regulation
Lexipol\u27s Fight Against Police Reform
Get PDFWe are in the midst of a critically important moment in police reform. National and local attention is fixed on how to reduce the number of people killed and injured by the police. One approach—which has been recognized for decades to reduce police killings—is to limit police power to use force.
This Article is the first to uncover how an often-overlooked private company, Lexipol LLC, has become one of the most powerful voices pushing against reform of use-of-force standards. Founded in 2003, Lexipol now writes police policies and trainings for over one-fifth of American law enforcement agencies. As this Article documents, Lexipol has refused to incorporate common reform proposals into the policies it writes for its subscribers, including a use-of-force matrix, policies requiring de-escalation, or bright-line rules prohibiting chokeholds and shooting into cars. Lexipol has also taken an active advocacy role in opposition to proposed reforms of police use-of-force standards, pushing, instead, for departments to hew closely to Graham v. Connor’s “objectively reasonable” standard. Finally, when use-of-force reforms have been enacted, Lexipol has attempted to minimize their impact.
Local governments, police departments, and insurers have long viewed Lexipol as a critically important partner in keeping policies lawful and up to date. This Article makes clear that they should take a closer look. Lexipol’s aggressive efforts to retain wide officer discretion to use force may ultimately expose officers and agencies to liability instead of shielding them from it. It is time for advocacy groups seeking policing improvements to train their sights on Lexipol. Unless and until Lexipol changes its approach, the company should be viewed as a barrier to reform. * Professors of Law, UCLA School of Law. For thoughtful comments on prior drafts, we than
Patent Inconsistency
Get PDFDespite the promise of efficiency through the use of expert agency adjudication in U.S. patent law, administrative substitution continues to fall short. In a variety of ways, the decade-old system of Patent Office adjudication is simply an additional place to litigate rather than the robust technocratic alternative it was meant to be. These problems have arisen from important defects in the statutory design, but also from the enormous expansion and ascendancy of the Patent Office itself. Moreover, while duplicative litigation over patent validity is recognized and criticized, its scale and scope has eluded detailed empirical analysis until now. This Article documents and measures those ill effects and explains their structural origins. It evaluates varying responses from Federal Circuit and Supreme Court decisions and from regulatory experimentation in the Patent Office itself. The Article concludes with proposals for reform. The analytical framework for reform that is suggested here is especially timely given the incompleteness of judicial and regulatory responses thus far