Congratulations to the Vol. 50 Note Candidates!

The Indiana Law Review is pleased to announce that the following students have been selected as Note Candidates for Volume 50.  We look forward to their contributions to legal scholarship over the coming school year. Congratulations!

Tess Anglin                                                     Zach Mahone

Joel Benson                                                     Ryan Mann

Bradley Boswell                                             Patrick McCarney

Janeia Brounson                                            Daniel McGregor

Kelsey Dilday                                                  Nathaniel Moyer

Katherine Forbes                                           Jennifer Phillips

Joseph Gilham                                                Jackson Schroeder

Allan Griffey                                                   Yaniv Shmukler

Ashley Hart                                                     Allison Skimehorn

Tyler Haston                                                   James Strickland

Michael Heavilon                                          Julie Tempest

Matthew Koressel                                          Tim Walters

Kayleigh Long

Congratulations to the Vol. 50 Note Candidates Selected for Publication!

The Indiana Law Review is pleased to announce the following note candidates have been selected for publication in Volume 50:

Kristina Coleman, Beyond Baidoo v. Blood-Dzraku: Service of Process Through Facebook And Other Social Media Platforms Through An Indiana Lens

John DeRoss Jr., Misclassification Of Employees As Independent Contractors In Indiana: A State Legislative Solution

Justine Farris, The Right Of Non-Citizens To Bear Arms: Understanding ‘The People’ Of The Second Amendment

*Tabatha Halleck, What Should A Showing Of Intent Or Purpose Require In A Case Of Corporate Liability For Child Slavery Under The Alien Tort Statute?

Benjamin Jacqua, Policing The Police: Reexamining The Constitutional Implications Of Traffic Stops

Tyler Jones, Paradise Lost: Contracting Away Immunity Under The Indiana Tort Claims Act

Kyle Montrose, Aim For The Best, Prepare For The Worst: Indiana’s Lack Of Municipal Bankruptcy

Tyler Moorhead, Business Courts: Their Advantages, Implementation Strategies, And Indiana’s Pursuit Of Its Own

Alexander Swider, Toeing The Line: The Delicate Balance Attorneys Must Maintain When Responding To Auditor Inquiry Request Letters

Ariana Tanoos, Shielding The Presumption of Innocence from Pretrial Media Coverage

Megan Thobe, A Call To Action: Fixing The Judicially-Murkied Waters Of 35 U.S.C. § 101

*winner of the Papke Prize, awarded annually for the best student note

Criminalization of HIV: Spread of the Viral Underclass

by Tyler J. Smith
J.D., 2015, Indiana University Robert H. McKinney School of Law

H-I-V. Arguably, no three letters in American society have generated more fear of a “viral underclass” [1] than those associated with the Human Immunodeficiency Virus (“HIV”). In many states, including Indiana, simply having HIV is a crime with potentially severe consequences. The criminalization of HIV is founded on a fear of something many people do not fully understand and the stigma of “HIV’s association with an ‘outlaw’ sexuality, anal intercourse, gay men, people of color, and people who use drugs.” [2] Indeed, convictions under these statutes rarely have anything to do with actual HIV transmission or risk of transmission. [3] Over thirty states currently have HIV specific criminal statutes “based on perceived exposure to HIV, rather than actual transmission of HIV to another.” [4] (more…)

Union-Based Bidding Restrictions: Unresolved Issues

by Charles B. Daugherty
Easter & Cavosie
10455 N. College Ave.
Indianapolis, IN 46280
(317) 574-0828

For centuries, public entities have employed competitive bidding to form construction contracts for public projects. Public entities often prefer competitive sealed bidding because it promotes both the lowest and best price, and fair and open competition among all citizens. Indeed, the Indiana General Assembly enacted Indiana’s competitive bidding statute “to safeguard the public against fraud, favoritism, graft, extravagance, improvidence and corruption, and to insure honest competition for the best work or supplies at the lowest reasonable cost.” [1] That said, the competitive bidding system has faults. Owners sometimes use pre-bid arrangements and procedures to address perceived flaws in the competitive bidding process. Labor issues have been the subject of such pre-bid arrangements and procedures.


Congratulations to the Vol. 50 Editorial Board!

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:
Alexander Carlisle
Rebecca Critser
John DeRoss, Jr.
Ryan Heeb
Benjamin Jaqua
Kyle Montrose

Articles Editors:
Samuel Blink
Kristina Coleman
Kristina Frey
Justin Jones
Tyler Jones
Ariana Tanoos

Associate Editors:
Melody Bledsoe
Eric Coleman
Scott Frissell
Elizabeth Huffman
Robert Miller
Tyler Moorhead
Megan Thobe

Badged Bullies Belittling the Brazen: A Look into How School Resource Officers Contribute to the School-to-Prison Pipeline

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. [1] As a result, hundreds—if not thousands—of youth were funneled into the criminal justice system. [2] This over-criminalized reaction has been exacerbated by the presence of the school resource officers (“SROs”) [3] in some jurisdictions. Minor infractions once left to the resourcefulness of teachers or principals are now under the purview of in-house police officers. [4] As a result, more students are receiving the end-of-school designation of felon instead of high school graduate. [5] 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. [6] 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, [7] a thirteen-year-old arrested for passing gas, [8] and a six-year-old arrested for throwing a temper tantrum. [9]


Can Congress Play A Role in Remedying Dysfunctional Political Partisanship? – A Prolegomenon

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.

2015 ILR Symposium: Partisan Conflict, Political Structure, and Culture

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.

Online Registration for Outside Attendees
Online Registration ONLY for IU McKinney Students, Faculty, and Staff

Indiana Employers Earn New Wage Claim Defense

by Kristopher N. Kazmierczak
Katz Korin P.C.
334 N. Senate Avenue
Indianapolis, Indiana 46204

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. [1] 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. [2] Before the revision, courts had no discretion to deny an award of liquidated damages in connection with meritorious wage claims. [3]

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. [4] 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. [5] 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…)

A Roadmap for Business and Social Movement Collaboration

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

This year, the Indiana General Assembly offered up Senate Bill 101 (the Religious Freedom Restoration Act or “RFRA”), [1] 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. [2] RFRA raced through the Republican supermajority legislature and was quickly made law by Governor Mike Pence, one of the nation’s most conservative governors. [3] 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. [4]

Business and grassroots advocacy leaders collaborated to try to defeat RFRA. [5] None expected to succeed, [6] 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. [7] In fact, businesses often engage in such initiatives. [8] 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. [9] CSR is also part of the syllabus in business ethics classes, which many business schools now require students to take. [10] 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. [11]

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…)