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Class of 2022, Indiana University Maurer School of Law Graduate Legal Studies
No full textNames of graduates are located below their individual photograph on the image.https://www.repository.law.indiana.edu/composite/1082/thumbnail.jp
Tort Law Implications of Compelled Physician Speech
Get PDFAbortion-specific informed consent laws in many states compel physicians to communicate state-mandated information that is arguably inaccurate, immaterial, and inconsistent with their professional obligations. These laws face ongoing First Amendment challenges as violations of the constitutional right against compelled speech. This Article argues that laws compelling physician speech also pose significant problems that should concern scholars of tort law.
State laws that impose tort liability on physicians who refuse to communicate a state-mandated message often do so by deviating from foundational principles of tort law. Not only do they change the substantive disclosure duties of physicians under informed consent law, but many modify or even reject the procedural requirements for tort liability. Most significantly, these laws relieve prospective plaintiffs of the burden of proving two fundamental elements of negligence—causation in fact and proximate causation. Thus, when states compel physician speech for political reasons, their actions challenge not only constitutional principles, but tort principles as well
The Pledge of Allegiance and Compelled Speech Revisited: Requiring Parental Consent
Get PDFSince the Supreme Court decided West Virginia State Board of Education v. Barnette in 1943, free speech law has been clear: public schools may not force students to recite the Pledge of Allegiance. Nevertheless, in two states—Texas and Florida— students may decline to participate only with parental permission. The Eleventh Circuit Court of Appeals upheld the law on the grounds that the parental requirement furthered parents’ substantive due process right to control the upbringing of their children.
The Eleventh Circuit decision is flawed both in its understanding of the First Amendment right to be free of compelled speech and the substantive due process rights of parents. These mandatory pledge laws are viewpoint-based and therefore presumptively unconstitutional. While the free speech rights of students are more circumscribed than adults, none of the established justifications for curtailing student speech rights at school apply in this case. On the contrary, forcing students to pledge against their will exemplifies all the harms of compelled speech. Finally, parents’ constitutional right to control the upbringing of their children is meant to protect parents from the state, not to empower parents to trample on the rights of their children. In the end, the parental permission rule is simply a pretext for the state’s own viewpoint-based compulsion
NIFLA and the Construction of Compelled Speech Doctrine
Get PDFVirginia State Board of Education v. Barnette. There are good and convincing explanations for the Court’s decision in Barnette, but the Court’s recent expansion of the doctrine, culminating in National Institute of Family & Life Advocates (NIFLA) v. Becerra, holds that compelled speech is in most instances “content-based” regulation requiring heightened judicial scrutiny.
Using examples ranging from professional malpractice to compulsory tax returns, this Article argues that the doctrinal rule of NIFLA is demonstrably incorrect. It suggests that the doctrinal category of “compelled speech” may itself be confused insofar as it imagines that all legal obligations to communicate are equally disfavored under the Constitution. Courts should scrutinize instances of compelled speech as necessary to protect threatened constitutional values, but the presence of these values will vary depending upon social context.
Courts must learn to read the constitutional geography implicit in distinct social landscapes. This Article offers some hints for how this might be done. Applying these insights to NIFLA, the Article argues that the outcome of the case actually depended upon preconscious and undefended suppositions about social context. Constitutional decisions like NIFLA can be made persuasive only if such suppositions are made explicit and justified
Constitution Drafting After the Arab Spring: A Comparative Overview
Get PDFScholars have written extensively on the content of post-Arab Spring constitutions, highlighting these constitutions\u27 strengths and weaknesses. Less attention has been devoted to the processes that led to the adoption of these new documents. By providing a comprehensive comparative analysis of these constitution-drafting processes, this Article aims at contributing to filling this gap in the literature. Special focus is placed on the constitution-making processes followed in Morocco (constitution of 2011), Syria (constitution of 2012), Tunisia (constitution of 2014), and Egypt (constitutions of 2012 and 2014 the latter being amended in 2019), as well as on the constitutional reform processes that took place in Jordan (2011, followed by the constitutional amendments adopted in 2014 and 2016) and Algeria (2016 and 2020). Reference is also made to the ongoing constituent process in Libya and to the UN-facilitated process aimed at adopting a new constitution for Syria. The Article shows that the cast majority of these processes were characterized by major shortcomings, a fact that had a negative impact on the legitimacy and sense of ownership of the new constitutions and, ultimately, on the transition processes as a whole. The only notable exception appears to be Tunisia, where the 2014 constitution was the outcome of a profoundly democratic process
The Right to Privacy and Data Protection in Times of Armed Conflict
Get PDFContemporary warfare yields a profound impact on the rights to privacy and data protection. Technological advances in the fields of electronic surveillance, predictive algorithms, big data analytics, user-generated evidence, artificial intelligence, cloud storage, facial recognition, and cryptography are redefining the scope, nature, and contours of military operations. Yet, international humanitarian law offers very few, if any, lex specialis rules for the lawful processing, analysis, dissemination, and retention of personal information. This edited anthology offers a pioneering account of the current and potential future application of digital rights in armed conflict.
In Part I Mary Ellen O’Connell, Tal Mimran and Yuval Shany, Laurie Blank and Eric Talbot Jensen, Jacqueline Van De Velde, Omar Yousef Shehabi and Emily Crawford explore how various IHL regimes, ranging from the rules regarding the protection of property to these regulating the treatment of POWs, protect the rights to digital privacy and data protection.
Part II, which contains contributions by Leah West, Eliza Watt and Tara Davenport, and concentrates on the extent to which specific technological tools and solutions, such as facial recognition, drone surveillance and underwater cables.
Part III of this collection examines the obligations of militaries and humanitarian organizations when it comes to the protection of digital rights. Tim Cochrane focuses on military data subject access rights, Deborah Housen-Couriel explores data protection in multinational military operations, and Asaf Lubin expounds the role of ICRC as a data controller in the context of humanitarian action.
In Part IV Kristina Hellwig, Yaël Ronen and Amir Cahane focus on digital rights in the post bellum phase. This part takes a closer look at the role of the right to privacy in the investigation and prosecution of international crimes, the ‘right to be forgotten’ in cases concerning information about international crimes and the protection of the digital identities of individuals caught up in humanitarian disasters.https://www.repository.law.indiana.edu/facbooks/1297/thumbnail.jp
