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Post-AEDPA Compromise: Increased Habeas Corpus Relief for Capital Cases and Tighter Restrictions for Noncapital Cases
Get PDFWeathering State and Local Budget Storms: Fiscal Federalism with an Uncooperative Congress
Get PDFThroughout most of 2020, state and local governments faced severe budget crises as a result of the COVID-19 pandemic. Increased demand for state welfare services and rising state expenses related to controlling the spread of COVID-19 stretched state and local budgets to their breaking points. At the same time, layoffs, business closures, and social distancing measures reduced states’ primary sources of tax revenues. The traditional practice of American fiscal federalism is for the federal government to step in to provide aid during a national emergency of this magnitude, because state and local governments lack the federal government’s monetary and fiscal powers. But during the 2020 national emergency, the majority coalition in control of Congress was skeptical of this traditional practice, leaving federal aid limited and insufficient.
Late in the day, and after a change of Presidents and in partisan control of the Senate, the federal government did eventually step in to provide substantial aid to state and local governments at the beginning of 2021. But, during 2020, it was not at all clear that this would occur. Regardless, due to heightened partisan polarization and related factors, it seems highly likely that future national emergencies will occur during times in which the federal government is again controlled by a majority coalition skeptical of the federal government’s traditional role of providing aid to state and local governments during downturns.
This Article thus proposes a series of innovative state tax reform measures and other related reform proposals for modernizing states’ outdated tax bases and crisis-proofing American institutions of fiscal federalism. These proposals were initially designed as reforms to mitigate the harmful state and local budget consequences of the COVID-19 pandemic. But a central role of legal scholarship should be to develop law reform solutions for legislatures and for other policymakers to prepare for future emergencies when those solutions may be urgently needed. To that end, this Article elaborates on and memorializes proposals initially developed for the 2020 crises, so that these proposals might be further developed to be ready as potential responses for future crises in which the federal government might once again prove unwilling to act sufficiently
Cole Recognized as “Reviewer of the Year” for Prestigious Economics Journal
Get PDFA Maurer School of Law faculty member has been recognized for his contributions to reviewing interdisciplinary research for the Journal of Institutional Economics. Professor Dan Cole, Robert H. McKinney Professor of Law and a senior fellow with the Ostrom Workshop, was named one of three “Reviewers of the Year” by the journal on Wednesday (Sept. 7). The announcement was made during the annual World Interdisciplinary Network for Institutional Research (WINIR) Conference. The award, which comes with a £400 prize, recognizes outstanding reviewers for the journal
Quintanilla Earns ABF Affiliated Scholar Designation
Get PDFProfessor Victor D. Quintanilla, Val Nolan Faculty Fellow, and co-director of the Law School’s Center for Law, Society & Culture, has been designated as an affiliated scholar with the American Bar Foundation, the organization announced this week. The affiliation, which formally began on September 1, will last for three years and allow Quintanilla to serve as a mentor to ABF doctoral fellows and take part in ABF initiatives
Ochoa selected as new dean of IU Maurer, first person of color to lead law school
Get PDFThe next dean of the Indiana University Maurer School of Law will come from in house.
IU Maurer announced longtime faculty member Christiana Ochoa as the 17th dean in the law school’s history on Thursday.
Ochoa, who has served as interim dean since July, will move into the full-time deanship at the Bloomington school effective Nov. 1. She is the first person of color and the second woman to be named dean in IU Maurer’s history.
Additionally, according to IU Maurer, Ochoa is the eighth Latina ever to serve as the dean of a U.S. law school
Organized for Service: The Hicks Classification System and the Evolution of Law School Curriculum
Get PDFThis article traces the origins and development of the Hicks Classification System, an in-house organizational scheme used by the Yale Law Library from the late 1930s to the 1990s. It explores the relationship between the Hicks Classification System and the changing pedagogical methods of the law school curriculum during the early part of the 20th century. It provides a brief biographical sketch of Frederick C. Hicks, creator of the scheme, the need for a legal classification system, a detailed analysis of Hicks’s scheme, its finding aids, and a discussion of the inherent cultural biases in the system
Escaping Circularity: the Fourth Amendment and Property Law
Get PDFThe Supreme Court’s “reasonable expectation of privacy” test under the Fourth Amendment has often been criticized as circular, and hence subjective and unpredictable. The Court is presumed to base its decisions on society’s expectations of privacy, while society’s expectations of privacy are themselves presumed to be based on the Court’s judgements. As a solution to this problem, property law has been repeatedly propounded as an allegedly independent, autonomous area of law from which the Supreme Court can glean reasonable expectations of privacy without falling back into tautological reasoning.Such an approach presupposes that property law is not itself circular. If it were, then property would be subject to the very same criticisms that plague the reasonable expectation of privacy test. The ubiquitous “bundle-of-sticks” interpretation of property law, however, is inherently circular. Therefore, this common realist analysis of property fails to offer a coherent solution to the Supreme Court’s doctrinal concerns. In spite of this, property law can nonetheless provide solutions to circularity when viewed through another lens.This Article applies the “New Private Law” research framework in the context of the Fourth Amendment and property law, thereby incorporating findings from cognitive science, sociology, and complex systems theory alongside doctrinal private law analyses. The Article demonstrates that an intensional definition of property, as well as of thinghood and possession, provides the necessary analytical tools to understand when and how property law can aid in avoiding circularity. Such a solution, however, would require that the realist approaches to property law—currently embraced by courts and legislatures—make way for a more nuanced vision informed by the growing interdisciplinary approaches to private law
The Reasonable Intelligence Agency
Get PDFArticle 57(2) of the First Additional Protocol to the Geneva Conventions requires parties to an armed conflict to “do everything feasible to verify” their objects of attack and take “all precautions” to minimize civilian casualties and unintentional damage to civilian property. This obligation has been interpreted in international law to require state parties to set up an “effective intelligence gathering system” that would properly identify targets using all technical means at the disposal of the combating forces.But existing law has failed to define what “effective intelligence” looks like. Quite the opposite. Modern history is filled with examples of intelligence errors that resulted in calamitous civilian casualties. In this paper I look at three such case studies, spanning various historical periods, geographical zones, and belligerent parties. Examining these cases, this Article makes the claim that faults in wartime intelligence production are not inevitable as is often presumed and that it is for a lack of specific regulation within the treatises of International Humanitarian Law (IHL) that they occur at the rate that they do.The paper makes two important contributions: First, it highlights a temporal and spatial disconnect between the intelligence and military functions, which is not sufficiently accounted for in our contemporary laws of war. Tribunals and military manuals guide us to rely on the reasonable commander test in determining the lawfulness of a particular strike. Yet, in the process we overlook the fact that any reasonable commander will turn to her reasonable intelligence agency —the contours of this standard are conspicuously under-defined. Second, the paper demonstrates the existence of an accountability gap in IHL for faulty intelligence used in targeting decisions. The paper takes a first step at proposing a new duty of care, under which states will be held civilly liable for unreasonable intelligence errors that are found to be the cause for the otherwise avoidable civilian harm