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Communication Breakdown: How Courts Do - and Don\u27t - Respond to Statutory Overrides
Get PDFEarlier commentators, including many well-respected judges, have offered thoughtful suggestions for facilitating communication from courts to Congress about problems in statutes that Congress might want to address. My research explores the opposite question. How effective is communication from Congress back to courts? The answer is: Not very. Even when Congress enacts overrides, courts frequently continue to follow the prior judicial precedent. This is likely due more to information failure than willful disregard of controlling law. Nonetheless, a key aspect of the separation of powers is broken.
My research shows that when the Supreme Court overrules a prior decision, lower courts quickly decrease their reliance on the old precedent and begin to apply the new rule. By contrast, when Congress enacts an override, citation patterns to the prior precedent change very little. Even a decade later, many overridden precedents, or what I have called “shadow precedents,” are still routinely cited as controlling precedent
The Case for State Borrowing as a Response to the Current Crisis
Get PDFThe coronavirus pandemic is a national emergency that requires a national response. Asking states to absorb the budgetary losses caused by the pandemic while they are tasked with providing essential frontline services is comparable to asking states during World War II to pay for the landing in Normandy.
This article is a contribution to Project SAFE: State Action in Fiscal Emergencies. We have already argued, more than once, that the federal government should borrow to prevent steep state and local budget cuts. But because the federal government will apparently not take sufficient action, we offer these ideas to states for how to proceed with borrowing absent sufficient federal aid
Dean\u27s Desk: IU Maurer research focusing on most topical issues of 2020
Get PDFThe three major stories of 2020 — the COVID-19 pandemic, the heightened awareness of racial injustice and the election — have made this year one that we will remember. While we couldn’t have envisioned all that would happen at the beginning of the year, our faculty are producing useful and thought-provoking scholarship on all these topics.
I often use my Dean’s Desk columns to celebrate student and alumni achievement, to describe new and innovative programs in our curriculum, or to share how the law school supports and collaborates with community organizations and the courts to provide pro bono legal services throughout Indiana. The law school, however, is also part of one of the nation’s leading research universities at Indiana University Bloomington. Our faculty’s scholarship informs public debate, provides powerful insights into important legal issues and offers solutions to some of today’s toughest problems. In this column, I thought I would highlight just a few recent examples
Clerking for Judge Elbert Tuttle: A Privileged Witness
No full textProfessor Aman\u27s contribution to this volume (co-authored with Anne S. Emanuel) is found in Part III: Clerking for Federal Court of Appeals Judges. It is titled Clerking for Judge Elbert Tuttle: A Privileged Witness.https://www.repository.law.indiana.edu/facbooks/1237/thumbnail.jp
Trial Objections Handbook (2020 Edition)
No full textTrial Objections Handbook is the only resource you need to make or defend every possible evidentiary objection. You\u27ll get clear explanations of all 109 objections commonly used in civil and criminal court, as well as each objection\u27s basis in law. Your objections will be timely, effective, and unshakable, because Trial Objections Handbook covers how to: Instantly recognize improper evidence and respond appropriately with a correctly phrased, well-researched objection Reduce your opponent\u27s opportunities to object by asking questions that will withstand any attack
A quick-reference guide is included that provides a shorthand version of information from the main book for easy use in court.https://www.repository.law.indiana.edu/facbooks/1272/thumbnail.jp
Blockchain Stock Ledgers
Get PDFAmerican corporate law contains a seemingly innocuous mandate. Corporations must maintain appropriate books and records, including a stock ledger with the corporation\u27s shareholders and stock ownership. The importance of accurate stock ownership records is obvious. Corporations must know who owns each of its outstanding shares at any point in time. Among other things, this allows corporations to determine who receives dividends and who is entitled to vote. In theory, keeping accurate records of stock ownership should be a simple matter. But despite diligent efforts, serious share discrepancies plague corporations, and reconciliation is often functionally impossible. Doing so may require the examination of records from millions of trades, including records from hundreds of participant brokers and custodial banks (not to mention records from their individual clients). So, when disputes arise, there is frequently no easy answer.
This Article charts the use of blockchain technology as a potential solution to the systemic issues hindering efforts to maintain accurate records of stock transactions. In doing so, this Article accomplishes three goals. First, it establishes that federal efforts to resolve the paperwork crisis of the 1970\u27s created a concomitant problem the lack of reliable records of stock ownership, which now threatens the exercise of shareholder rights. Second, it demonstrates that practical constraints, not legal barriers, stand as the most significant impediment to the application of blockchain technology to corporate recordkeeping and global capital markets. Third, it argues that despite reasons for skepticism, states should proactively amend corporate codes to authorize the use of blockchain technology because it enables corporate choice and facilitates efforts by private actors to assess the viability of innovative solutions. This Article concludes by drawing transferable lessons to improve law and policy as new applications of blockchain technology continue to emerge
Water is Life! (and Speech!): Death, Dissent, and Democracy in the Borderlands
Get PDFDecades of stringent immigration enforcement along the Southwest border have pushed migrants into perilous desert corridors. Thousands have died in border regions, out of the general public view, yet migrants continue to attempt the dangerous crossings. In response to what they see as a growing humanitarian crisis, activists from organizations such as No More Deaths seek to expand migrant access to water, to honor the human remains of those who did not survive the journey, and to influence public opinion about border enforcement policies. Government officials, however, have employed a range of tactics to repress this border-policy dissent, including blacklists, water destruction, and aggressive arrests and prosecutions.
This Article argues that the context around No More Deaths\u27 work necessitates First Amendment scrutiny of government attempts to suppress or punish it. No More Deaths\u27 expressive conduct, carried out in the lethal areas where migrants have been funneled, aims not only to save lives but also to convey the message that all lives including those of unauthorized migrants are worth saving. After untangling the complex constitutional subdoctrines, the Article explains the argument\u27s broader implications for democratic knowledge and debate about the ethics of border policies. As increased border fortification and militarization lead migrants to attempt even more dangerous land and water crossings, Americans will increasingly be asked to consider whether humanitarian aid should be a crime. This debate generating function of No More Deaths\u27 nonviolent, symbolic dissent regarding an area of inchoate but intense public concern aligns it with classical values that lie at the core of the First Amendment
Congressional Securities Trading
Get PDFThe trading of stocks and bonds by Members of Congress presents several risks that warrant public concern. One is the potential for policy distortion: lawmakers\u27 personal investments may influence their official acts. Another is a special case of a general problem: that of insiders exploiting access to confidential information for personal gain. In each case, the current framework which is based on common law fiduciary principles is a poor fit. Surprisingly, rules from a related context have been overlooked.
Like lawmakers, public company insiders such as CEOs frequently trade securities while in possession of confidential information. Those insiders\u27 trades are governed by federal securities regulations. Borrowing from these regulations, this Essay proposes a taxonomy of congressional securities trading (CST) and develops a comprehensive prescription to manage it. Specifically, Rule 10b5-1 plans (which disclose trades ex ante) and the section 16(b) short-swing profits rule of the Exchange Act (which disgorges illicit profits ex post) should be adapted to the congressional context. To further minimize conflicts of interest, lawmakers should also be restricted from owning any securities other than Treasuries and passive U.S. index funds. The Essay uses recent high-profile trading scandals to illustrate why the new bright-line rules proposed here are better suited to this problem than both the current system of regulating CST, which relies on common law standards, and prominent alternative reform proposals
Why States Should Consider Expanding Sales Taxes to Services, Part 1
Get PDFStates are facing a severe budget crisis as a result of the coronavirus pandemic. And with the federal government unlikely to pass a relief bill to address those state budget issues,1 states will need to play a significant role in making up revenue shortfalls.
This is the first in a three-part series, which is a contribution to Project SAFE: State Action in Fiscal Emergencies. This essay will lay out the general case for why states should consider expanding their sales tax bases to more services as a response to the COVID-19 crisis. The follow-ups will discuss further mechanics and details of how best to accomplish this goal. In particular, the second essay will argue that there are low-hanging reforms that could raise substantial revenue, would represent good tax policy, and might be politically possible even during the current crisis. In the third essay we will then introduce reforms to help with the critical problem of tax pyramiding
