The Indiana Law Review invites you to join us for our annual symposium, titled Partisan Conflict, Political Structure, and […]
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”),  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.
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. .
by Robert A. Katz
Professor of Law (Faculty Profile)
Indiana University Robert H. McKinney School of Law
Lawrence W. Inlow Hall, Room 349
530 W. New York Street
Indianapolis, IN 46202-3225
[Editor’s Note: This article departs from the typical format and citation style of the Indiana Law Review Blog in the interest of providing commentary on the passage of Senate Bill 101, commonly referred to as the “Religious Freedom Restoration Act,” or RFRA. This article consists of abbreviated remarks presented by the author to the House Judiciary Committee of the Indiana General Assembly on March 16, 2015, 10 days before the bill was signed into law by Indiana Governor Mike Pence.]
Good day. My name is Robert Katz. I am a professor of law at Indiana University Robert H. McKinney School of Law where I teach First Amendment law and law and religion. My research focuses on the tension between religious freedom and anti-discrimination law. It is one of my most profound concerns as a citizen, a parent, and a member of the Jewish community.
The freedom of religion is one of our most fundamental rights as Americans. Yet, also precious to us as citizens are our civil rights and, most relevantly here, our right to be free from discrimination.
As I understand it, this bill has two main goals.
by Fran Quigley
Clinical Professor of Law (Faculty Profile)
Health and Human Rights Clinic
Indiana University Robert H. McKinney School of Law
Lawrence W. Inlow Hall, Room 111N
530 W. New York Street
Indianapolis, IN 46202-3225
Proposals to raise the U.S. minimum wage have attracted a great deal of attention in the last several years. At the federal level, President Obama and many members of Congress have expressed support, via the Fair Minimum Wage Act, for an increase in the U.S. minimum wage. . The legislation calls for an increase to $10.10 per hour for most workers, compared to the current minimum of $7.25 per hour. . The bill also would increase the bottom level of pay for tipped workers from $2.13 per hour to 70% of the hourly worker minimum, and index both hourly and tipped worker wage levels for inflation. .
The federal bill has not passed, but twenty-nine states and the District of Columbia have all raised their minimum wage above the federal level. . At least 140 individual communities have passed living wage ordinances, which raise salaries above the federal or state minimums. . Bills proposing an increase in Indiana’s minimum wage, currently set to mirror the federal level,  failed to get a hearing in the 2015 session of the Indiana General Assembly. .
The minimum wage debate has often been characterized by misstatements of facts and forecasts that are not supported by evidence. In an effort to separate the myths from the reality, here are four arguments for raising the minimum wage:
by Drake T. Land
J.D. Candidate, 2015, Indiana University Robert H. McKinney School of Law
Indiana International & Comparative Law Review: Executive Articles Development Editor
B.S., 2007, Ball State University; Muncie, Indiana
Editor’s note: Mr. Land’s article was selected from submissions in the Indiana Law Review‘s first writing competition.
Following the introduction of Genetically Modified Organisms (“GMOs”) into the food market in 1994,  consumer groups and multiple legislative bodies have fought to restrict their sale and label GMOs differently than traditionally developed foods. . This push to restrict the sale, or label, of GMOs is born of the fear that GMOs will have unforeseen consequences to human health and/or the environment. . These fears have been shown to be unrealized after twenty years of market availability  and, although restrictions on the sale of GMOs and mandatory labeling is the law in most European countries,  labeling initiatives have not achieved the same success in the United States’ federal and state governments. . The European Union “has probably the strictest GMO regulations in the world though these derive rather from political considerations, rather than being based upon scientific principles.” . Unlike the European Union (“the EU”), the United States Constitution explicitly “promote[s] the progress of science,”  and under this framework the United States has provided more protection to the development and retail of GMOs.
All currently grown crops have been developed through genetic modification. . “By selectively breeding plants and animals with the most desirable traits, our predecessors transformed organisms’ genomes, turning a scraggly grass into plump-kerneled corn, for example.” . Following Mendel’s discovery of the inheritance of genetic traits, farmers and scientists alike have been using selective breeding and hybridization to alter food crops to make them more reliable and marketable. . “Today, there are virtually no food products in supermarkets that have not been improved in some manner by selective breeding.” .
“To preserve legislative independence, . . .‘legislators engaged in the sphere of legitimate legislative activity should be protected not only from the consequences of litigation’s results but also from the burden of defending themselves.’” .
“Private lawsuits threaten to chill robust representation by encouraging legislators to avoid controversial issues or stances in order to protect themselves.” .
“We are governed by laws, not by the intentions of legislators.” .
“[I]t simply is not consonant with our scheme of government for a court to inquire into the motives of legislators . . . .” .
“All politics is local.” . Former Speaker of the House Thomas Phillip “Tip” O’Neill used these words to remind federal politicians to “pay attention to their own backyards and take care of their folks.” . The concept also carries a broader meaning – that local legislative actors are most intimately entrusted with providing services to the public. Often, local legislative actors are not afforded the opportunity to focus solely on their legislative jobs. Their role as town council member, city council member, or state legislator is often only a part-time job for which they must supplement their salary with other work. Federal legislators, on the other hand, are afforded full-time jobs and a staff to assist them in performing their functions. In this context, when a city or town is sued for taking some legislative action, the local legislator should be protected from judicial inquiry to the same extent as the federal legislator. Unfortunately, a circuit split has developed, with some federal courts providing a lesser legislative immunity to local legislators than is provided to federal legislators.