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The Case for Contingent Regulatory Sunsets
Full text linkCost-benefit analysis is at the core of regulatory impact analysis for every proposed rule or regulation and is designed to be a structural constraint on the administrative state. The challenge is ex ante cost-benefit analysis necessarily rests on many assumptions, and much more information is available about a regulation’s impact after it has been implemented. But ex post cost-benefit analysis is ad hoc and infrequent in spite of efforts by numerous presidential administrations to promote regulatory lookbacks.
I propose institutionalizing “contingent regulatory sunsets” to ensure that rules and regulations have the positive impact in practice that administrative agencies intended. I show how Congress can consider a spectrum of approaches for independent actors to conduct regulatory lookbacks of economically significant regulations at regular intervals. I explore the merits for centralized legislative branch review (Government Accountability Office), strengthened executive branch review (Office of Information and Regulatory Affairs), agencies themselves, and the creation of a new “Regulatory Lookback” agency to take on this role. While each approach has virtues, I conclude that each agency’s Office of Inspector General (OIG) may be best positioned to build on existing oversight functions to provide periodic review of the impact of regulations.
If the OIG’s cost-benefit analysis shows that the regulation’s real-world impact is actually negative, then the agency that issued the rule would face the burden of rescinding, modifying, or providing updated justifications and cost-benefit analysis. The goal is not to cripple the workings of the vast administrative state, but rather to provide systematic, internal accountability. The hope is that overly optimistic assumptions about costs and benefits will be tempered by routine ex post scrutiny and the sunlight of empirical reality. I then lay out quantitative and qualitative limiting principles to show how periodic cost-benefit review of economically significant regulations could be economically and politically feasible. I conclude by proposing a pilot study to measure the efficacy of OIG ex post review of regulations to provide evidence to justify expanding this initiative on an executive branch-wide basis
Benched Judges
Full text linkIn multiple jurisdictions, if the prosecutor wants to attack the credibility of a person testifying in their own defense with that witness’s prior felony convictions, the judge has no power to say no. Judges decry their powerlessness. Their opinions reveal three types of concerns: that these convictions lack probative value on the issue of credibility, that they inflict unfair prejudice that jury instructions cannot ameliorate, and that the power transferred by these provisions from judge to prosecutor is undeserved and abused.
There is much that could be done to address these concerns. The rules could be reinterpreted or rewritten to permit judicial exclusion. Even absent such a change, judges could push back with improved jury instructions, expert witnesses, or dismissal. Finally, there is new momentum to prohibit this prosecutorial tool altogether.
In choosing between these options, two considerations are critical. First, the caution of abolitionists that certain kinds of criminal reform risk sanitizing and entrenching harmful systems. Second, the extent to which standard academic discourse reinforces the assumptions underlying these provisions. For just as these provisions imbue prior convictions with unwarranted weight, traffic in unsupported assumptions about the ability of the system to protect against unfairness, and place their confidence in the judgment of the prosecutor, so academics in their explicit and implicit assertions do the same
Law and the Protection of Democracy: Essays in Honor of Alfred C. Aman Jr.
No full textHighly topical collection of innovative essays on the protection of democracy by eminent contributors from the judiciary, the practicing legal profession, the academy, and the realm of journalism./= / \u3e/= / \u3e/= / \u3eWith international safeguards for democracy showing signs of fragility as they come under various forms of attack, the vitality of the legal imagination will be essential to the future of the democratic rule of law. This collection of essays undertakes an innovative and timely assessment of the legal system\u27s capacity for self-renewal. In its focus on law as a creative project in the service of democracy, the volume honors Alfred C. Aman Jr., a distinguished law professor, administrator, jazz musician, and scholar. Aman\u27s extensive body of work includes farsighted, and ultimately optimistic, writings drawing attention to the potential of law reform as a means of addressing democracy deficits in the United States./= / \u3e/= / \u3eThis book provides a timely, even urgent, analysis of current challenges to democracy, tackling questions of Constitutional interpretation, separation of Church and State, press freedom, personhood, admissibility of evidence, environmental protection, and legal education, among other issues. Beyond current problems, authors consider resources for renewal in unexpected places, for example, looking to mentorship in legal education as support for democratic imagination and to processes of interpretation, improvisation, and generative dissonance as exemplified in music in ways that are relevant to law. The essays relate to the United States and other jurisdictions that, like the US, have fought hard for their freedoms and democracy through law.
Volume edited by and includes chapter, Protecting\u27persons\u27 in a technological era by Maurer Professor Yvonne Cripps
Includes chapter, Executive orders, credible commitments, and US climate policy by Maurer Professor Daniel Cole
Includes chapter, Harmonizing international migration and legal education by Maurer Professor Jayanth Krishnan
Includes chapter, In the groove: the Indiana Journal of Global Legal Studies by Maurer Law School Dean Christiana Ochoa and former student Arantxa Recarte
Includes chapter, Supporting the presumption of innocence and addressing systemic racism: reforming the law of evidence to prohibit impeaching criminal defendants with their prior crimes by Maurer Professor Aviva Orenstein
Includes chapter, Polyphony and dissonance: state courts, individual liberty, and reproductive rights by Maurer Professor Emerita Lauren Robel
Includes chapter, Gender equality and the music of constitutional design by Maurer Professor Susan Williams
Includes chapter, Laïcité : a jarring sound in global constitutionalism? by Maurer visiting Professor Élisabeth Zollerhttps://www.repository.law.indiana.edu/facbooks/1343/thumbnail.jp
The Anti-Discriminatory Right to Travel
Full text linkTravel rights and travel restrictions shape nearly every part of society, moderating where and how we go about our daily lives. Yet a central aspect of travel has gone largely unnoticed in the legal literature. Oppressive governments have routinely restricted free movement as a principal means of effectuating discrimination. And travel rights, as a result, have always had a strong anti-discriminatory valence. From the Magna Carta to Blackstone’s Commentaries to the Constitution itself, rights to travel have consistently emerged from struggles against discrimination.
This Article makes several independent but related contributions. First, the Constitution’s protections of travel have a strong anti-discriminatory core. Second, travel restrictions have been used as a key tool for effectuating discrimination throughout history. Third, because constitutional rights to travel were intended to serve as a bulwark against discriminatory travel restrictions, these same restrictions should not be used to support the constitutionality of contemporary restrictions. Rather than reflecting a historical acceptance of certain restrictions on travel, such laws represent the evil to which travel rights respond.
These insights have sweeping implications for a wide span of contemporary restrictions on travel, ranging from vagrancy and loitering ordinances to the federal No Fly List. Such restrictions have largely withstood constitutional challenge because of their historical antecedents. What this Article suggests is that these histories—histories of discrimination—instead render such restrictions especially constitutionally infirm. Recognizing the anti-discriminatory thrust of the Constitution’s rights to travel will reshape the landscape of both travel rights and travel restrictions
CSO Boutique helps students dress for success
Full text linkRummaging through the racks, hanger after hanger offers style at a price you can’t beat—free. Here on the third floor of the Law School, the Faculty Conference Room has been transformed into a makeshift storefront. Dresses, suits, dress shirts, sweaters, and more hang from three racks of donated clothing. Each piece already has its own history, but thanks to the generosity of faculty, staff, alumni, and even friends, law students have the opportunity to create their own in donated designer threads.
The Career Services Office Boutique is an annual event that matches clothing some no longer need to students who do.
“When I lived in Washington, D.C., my friends and I would have a clothing swap every year,” said Dean of Students Anne McFadden. “It was an Earth-friendly way of passing things along, and for 15 years we loved doing it. So when I came to the Law School I thought the idea would translate well for our students.
Lubin earns Indiana University’s Outstanding Junior Faculty Award
Full text linkAn Indiana University Maurer School of Law faculty member is one of six professors on the Bloomington campus to earn the university’s Outstanding Junior Faculty Award.
Associate Professor Asaf Lubin will be recognized this fall with the award, which is the most prestigious campus-level award available specifically to pre-tenure faculty. The award is designed to identify the most promising untenured faculty and assist them in the development of their research programs and creative activities
Vandy earns top prize in AUWCL National Health Law Writing Competition
Full text linkNicholle Vandy, a rising 3L from Knox, Ind., has become the first Indiana University Maurer School of Law student to earn top honors at the American University Washington College of Law National Health Writing Competition.
Vandy’s paper, “True Man, Captive Mother: Abortion as a Fundamental Self-Defense Right,” was named the winning entry of the 10th annual competition, which encourages law students from across the country to write scholarly papers on current topics of interest relevant to health, food, and/or drug law
Multiplicity as an AI Governance Principle
Full text linkAs AI becomes increasingly embedded in our daily lives, this Article explores one of its critical, yet overlooked, societal implications: the propensity of large language models (LLMs) to generate mainstream, standardized content, potentially narrowing their users’ worldviews.
Taking a close look at the technological underpinnings of LLMs, the analysis suggests that—due to the combination of human judgments, training datasets, and inherent features of the underlying technological paradigm—LLMs’ outputs are likely to be geared toward the popular and to project to their users concentrated, mainstream worldviews, sidelining a broader spectrum of perspectives. This Article explores the asymmetrical power relations between LLMs and humans, further suggesting that the constricted worldview projected through LLMs is likely to affect users’ perceptions and may yield a variety of systemic harms, from diminishing cultural diversity to undermining democratic discourse and burdening the formation of collective memory.
To address these challenges, this Article advocates a novel legal-policy response: incorporating multiplicity as a core principle in AI governance. Multiplicity implies exposing users, or at least alerting them, to the existence of multiple options, content, and narratives and encouraging them to seek additional information. This Article reviews the emerging AI governance landscape and explains why prevalent governance principles in the field, such as explainability or transparency, are insufficient for adequately addressing the “narrowing world” concerns and how embedding multiplicity into AI ethical and regulatory schemes could directly address these challenges. It further sketches ways for incorporating this principle into AI governance structures, concentrating on two non-exhaustive directions: multiplicity-by-design, namely embedding multiplicity-promoting features in the architecture of AI systems, and fostering diversity within the LLMs market that will facilitate users’ access to “Second (AI) Opinions.” Finally, it highlights the importance of promoting AI literacy among users for maintaining broad and diverse perspectives in the LLMs era. Altogether, the analysis concludes that incorporating a principle of multiplicity into AI governance will allow society to benefit from the integration of generative AI in our daily lives while preserving the richness and intricacies of the human experience
Unpacking Open Source Bio
Full text linkFor at least a quarter of a century, life science researchers around the world have undertaken initiatives loosely based on principles, goals, and institutional structures derived from the open source software (OSS) movement—approaches that I term “open source bio.” Yet open source bio lacks a clear definition and set of guiding principles. Given public calls for greater openness in life science research, it is useful to understand how open source bio projects have fared over the past quarter century: how they were structured, what they hoped to achieve, and, as social and policy experiments, whether or not they were successful. This Article analyzes twelve life science research projects that have claimed to operate on an open source basis. It distills the common structures, features, and goals of these heterogeneous projects and evaluates them in terms of three organizing principles of open source: (1) their provision of access to enabling technology, (2) their treatment of intellectual property (IP), and (3) their mode of technology development. It concludes with observations and recommendations regarding directions for future open source bio projects and the prospects for meaningful open source bio projects in the future
