The Indiana Law Review is pleased to announce the following members have been selected for its editorial board of Volume 50. We look forward to their leadership and contributions to legal scholarship throughout the 2016-17 academic year. Congratulations!
Tabatha Halleck, Editor in Chief
Alexander Swider, Executive Managing Editor
Justine Farris, Executive Notes Editor
Christopher Bloomer, Executive Articles Editor
Amy Dunn, Executive Articles Editor
Caroline Ryker, Senior Executive Editor
Christina Fisher, Symposium Editor
Kasey Polk, Executive Technology Editor
Note Development Editors:
John DeRoss, Jr.
by Marcus Alan McGhee
2015 Fellow, Program on Law and State Government
J.D. Candidate, 2016, Indiana University Robert H. McKinney School of Law
M.P.A., 2012, Northern Kentucky University
B.A., cum laude, 2010, Northern Kentucky University
Starting a few decades ago, school districts across the nation began to adopt and strictly adhere to zero-tolerance policies related to student behavior.  As a result, hundreds—if not thousands—of youth were funneled into the criminal justice system.  This over-criminalized reaction has been exacerbated by the presence of the school resource officers (“SROs”)  in some jurisdictions. Minor infractions once left to the resourcefulness of teachers or principals are now under the purview of in-house police officers.  As a result, more students are receiving the end-of-school designation of felon instead of high school graduate.  Of course, not all instances result in a conviction. Nonetheless, simply being arrested is sufficient to create a lasting record in the criminal justice system. Furthermore, the arrests discussed in this Article are not the ones of gun wielding deviants, but instead are those resulting from behavior most would argue typify adolescence: things like back talk and disobedience.  Indeed, after reading some arrest reports one might assume that the reports were drafted for mock trials instead of genuine criminal hearings: a fourteen-year-old arrested for texting,  a thirteen-year-old arrested for passing gas,  and a six-year-old arrested for throwing a temper tantrum. (more…)
by Mark D. Rosen
Professor of Law (Faculty Profile)
Chicago-Kent College of Law
565 W. Adams St., Room 751
Chicago, IL 60661
[Editor’s Note: Professor Rosen’s full analysis will be presented at this year’s Indiana Law Review Symposium, titled Partisan Conflict, Political Structure, and Culture, on Friday, November 6, 2015. Registration information is available here.]
A recent situs of deep partisan contestation – and a likely contributing cause of dysfunctional partisanship – are the rules of the road that operationalize our representative democracy in the States: for example, what conditions must be satisfied for voter eligibility, how votes are aggregated for purposes of selecting representatives, and how political campaigns are funded. State law governs most rules of the road, though Congress has substantial authority to regulate instead. Might there be a role for Congress here?
Perhaps. Partisan rules of the road threaten the system of representative government the Constitution creates for the federal government and guarantees the States. Congressional action to correct representative democracy’s problematic rules of the road accordingly falls within the domain of constitutional decisionmaking. My talk then builds on a larger project of mine that argues there ought to be a special set of norms are applicable when Congress engages in constitutional decisionmaking. Without a clear understanding of such norms, any suggestion that Congress can engage in responsible constitutional decisionmaking can be criticized as unrealistically naïve or utopian. More constructively, clearly articulated norms may increase the likelihood Congress will engage in responsible constitutional decisionmaking.
The Indiana Law Review invites you to join us for our annual symposium, titled Partisan Conflict, Political Structure, and Culture, on Friday, November 6, 2015 from 8:50 a.m. to 4:00 p.m. A detailed agenda can be found here.
As of July 1, 2015, Indiana employers are no longer automatically liable for paying liquidated damages as a penalty for overdue wages under Indiana law.  Indiana law previously mandated that an employer must pay a maximum of double the amount of unpaid wages as a penalty for unlawfully withheld wages, without exception.  Before the revision, courts had no discretion to deny an award of liquidated damages in connection with meritorious wage claims. 
A monumental shift in Indiana’s wage statute took effect on July 1, 2015 when, for the first time in over a century, the Indiana General Assembly authorized courts to use their discretion when considering an award of liquidated damages for overdue wages.  Following the change in the law, an award of liquidated damages can only be imposed after the court is convinced that the employer was not acting in “good faith” when it failed to timely pay wages.  Although this significant change was presumably intended to avoid unfair results for honest mistakes by employers, it will likely cause more uncertainty and indecision for employers, employees, and the courts when assessing potential liability for liquidated damages. Additionally, the change will likely lead to more uncertainty over responsibility for liquidated damages and litigation over past due wages. (more…)
by Kelly R. Eskew, J.D.
Clinical Associate Professor
Department of Business Law & Ethics
Kelley School of Business, Indiana University
1309 East Tenth Street
Bloomington, IN 47405 email@example.com
This year, the Indiana General Assembly offered up Senate Bill 101 (the Religious Freedom Restoration Act or “RFRA”),  a law ostensibly intended to protect Hoosiers from having to violate their religious principles, but widely viewed as a discriminatory response to the Seventh Circuit’s ruling in 2014 that struck down the state’s prohibition on same-sex marriage. . RFRA raced through the Republican supermajority legislature and was quickly made law by Governor Mike Pence, one of the nation’s most conservative governors. . But soon after, Pence signed an amendment that not only affirmed the rights of gays and lesbians, but also those who face discrimination on the basis of gender identity. .
Business and grassroots advocacy leaders collaborated to try to defeat RFRA. . None expected to succeed,  but what they achieved surprised everyone – and this collaboration is not an outlier. Businesses worked with social justice advocates on marriage equality, which is now the law throughout the country. . In fact, businesses often engage in such initiatives. . Businesses have corporate social responsibility (“CSR”) programs of varying complexity that not only make charitable donations through their foundations, but also pioneer environmental projects and work to strength communities and schools. . CSR is also part of the syllabus in business ethics classes, which many business schools now require students to take. . In other words, social responsibility has moved from fad to policy. Businesses are also creating their own social movements that mirror the principles shared by grassroots advocates in areas such as poverty eradication, health-care access, and sustainability. .
So when and why does the American business community align itself with grassroots social movements? And is there a roadmap that shows each how to leverage the other to achieve shared goals? A fully fleshed response to these questions is beyond the scope of this post, but the RFRA experience suggests some answers. (more…)
The Indiana Law Review is pleased to announce that the following students have been selected as Note Candidates for Volume 49. We look forward to their contributions to legal scholarship over the coming school year. Congratulations!
Everyone knows that corporations and limited liability companies (“LLCs”) are governed by statutory requirements that outline how such entities must organize and govern themselves, and subsequently record those activities. . Oftentimes, the focus on these statutory requirements centers on whether a company has properly maintained itself as an independent organization entitled to limited liability protection from creditors, thereby insulating the owners, members, and/or shareholders from claims. . Thus, the applicable statutes serve as an important benchmark to determine whether a corporation or LLC has properly observed “corporate formalities.” If the organization generally complies with the statute’s specifications for the filing and upkeep of corporate records (and does not engage in behavior that would allow creditors to pierce the corporate veil), the protection afforded a company by its jurisdiction of domicile will hold tight against third parties. . But statutes that apply to formal business entities serve an often-disregarded, yet critical second purpose: to set forth the rights and duties the owners owe one another and the company. . (more…)
by Jon Noyes (Attorney Profile)
Wilson Kehoe Winingham LLC
2859 N. Meridian St.
Indianapolis, IN 46208
(317) 920-6400 wkw.com
[Editor’s Note: This is the second article Jon Noyes has written for the Indiana Law Review Blog. You can find his first article here.]
Indiana’s adult wrongful death statutes group individuals into two categories: (1) adults who were married, or possessed dependent next of kin, or both;  and (2) adults who were not married and possessed no dependent next of kin. . Which category the decedent falls into determines the measure of damages available. .
Under normal circumstances, this does not present a substantial obstacle. It is usually easy to determine whether or not the decedent was married or possessed dependent next of kin. This can be as simple as looking at the decedent’s death certificate. However, what if it is impossible to determine whether the decedent possessed a spouse or dependents at the time of his or her death? For example, how would a married couple be categorized if they had no dependents and died in a manner that left it impossible to determine who predeceased who? Can the plaintiff show that the decedent meets the requirement of either?
The answer is no. As discussed below, if two individuals that would normally be considered adults that were married expire simultaneously or in a manner that makes it impossible to determine who predeceased who, the plain language of the Wrongful Death Statute seems to indicate that it would be impossible to determine which measure of damages apply. However, under principles of equity, the personal representatives of the decedents should be able to recover damages as if both individuals left surviving spouses. (more…)
The ability of a policyholder to recover pre-tender costs is an evolving area of insurance coverage law. In Dreaded, Inc. v. St. Paul Guardian Insurance Company, the Indiana Supreme Court held that, under the facts of that case, a policyholder could not recover the legal expenses it incurred defending itself from a claim asserted by the Indiana Department of Environmental Management (“IDEM”) prior to giving notice of or tendering the claim to its insurer. . And while Dreaded was limited to the facts of that case, the Indiana Court of Appeals in Travelers Insurance Company v. Maplehurst Farms, Inc. interpreted Dreaded to mean that pre-tender costs are simply not recoverable. . The courts’ decisions in Dreaded and Maplehurst rested, in part, on two grounds: (1) an insurer’s duty to defend its policyholder does not arise until the policyholder provides notice of the claim;  and (2) the insurance policy provision requiring a policyholder to give notice of a claim to the insurer is a condition precedent to coverage. .
Indiana courts should reconsider the holdings in Dreaded and Maplehurst. . These holdings result in the forfeiture of coverage, which is unfair and disfavored under Indiana law,  and ignore the realities of long-tail environmental claims. . To begin, Dreaded’s explanation of the duty to defend is incomplete. An insurer’s duty to defend its policyholder is not triggered by notice of the claim, but rather by the existence of a potentially covered claim. . (more…)