Page 1

recent faculty scholarship

Baier Hall / 211 S. Indiana Ave., Bloomington, IN 47405 / law.indiana.edu


on the forefront of innovation since 1842 When the founders of what is now the Indiana University Maurer School of Law sought to create a school “inferior to note west of the mountains” nearly 175 years ago, their vision included a first-rate faculty committed to research and teaching. That commitment endures today, as exemplified by this sampling of our faculty’s recent scholarly publications. Additional research will be described in later volumes of this booklet. I am particularly pleased to include in this booklet summaries of the works of our younger faculty. Their work is as timely as it is insightful, spanning such current topics as pregnancy discrimination, church bankruptcies, the intersection of law and psychology, and even travel to Cuba. Our more senior faculty’s contributions are important, too, covering prison privatization, climate change, and the political transformation of the American judiciary. Their work reflects the commitment set forth in Indiana University’s Bicentennial Strategic Plan to provide outstanding research that “continue[s] to meet the present and emerging needs of Indiana, the nation, and the world.” I hope that you enjoy reading about our faculty’s scholarship, and that it will lead to interesting discussions with your colleagues.

Austen L. Parrish Dean and James H. Rudy Professor of Law Summer 2016

1


Alfred C. Aman, Jr. / Roscoe C. O’Byrne Professor of Law

what do private prisons teach us about privatization in the context of globalization? In a recent article published in a symposium issue of the Fordham Urban Law Journal, Alfred C. Aman, Jr. and co-author Carol Greenhouse analyze prison privatization in relation to other aspects of the privatization movement. While prison privatization is often assumed to be a practical response to the mass incarceration crisis of the 1990s, their article shows that proponents of privatization also advocated prison privatization prior to the legislation that resulted in prison overcrowding in the late 1980s and 1990s. Shifting the historical context of privatization back in time sheds light on earlier efforts to reform prisons in partnership with the private sector — notably in the privatization of prison labor. All federal prisoners are required to work, and various reform efforts in the 1960s and 1970s focused on improving prison labor in various ways, by bringing private enterprise into the prison itself. Aman’s article reviews debates over minimum wage and workers’ rights in that context — issues that meanwhile were hotly contested outside of the prison context. By focusing on the politics of prison labor as labor, Aman and Greenhouse argue that we can appreciate more fully the larger context surrounding prison privatization — not (or not only) as a response to the cost burdens of incarceration on government, but also as a bellwether of globalization in relation to the labor force in general (e.g., off-shoring, debates over collective bargaining and the right to work, and the importance of a flexible labor force to navigating the ups and downs of business cycles). In his ongoing research in administrative law, Aman studies what he calls “the domestic face” of globalization — i.e., the dynamic role of government in both managing and responding to the globalization of capitalism, and, in that context, the impact of globalization on vulnerable populations such as prisoners, the poor, and others who rely on government services for their subsistence. Aman teaches administrative law, transnational law and a seminar on globalization, and is the founding editor of the Indiana Journal of Global Legal Studies. ........................................................................................... Prison Privatization and Inmate Labor in the Global Economy: Reframing the Debate over Private Prisons (with Carol J. Greenhouse), 42 FORDHAM URBAN LAW JOURNAL 355 (2015). 2

3


Robert L. Fischman / Richard S. Melvin Professor of Law; Adjunct Professor of Public and Environmental Affairs

how can nature conservation adapt to climate change?

how is the price of oil determined, and by whom?

The legal and scientific literature is chock-full of theoretical suggestions for adapting to global climate change. But

Many believe that market forces dictate the price of commodities such as oil, gas, and gold, but instead, these

how can landowners or water managers actually implement the ideas and tailor them to particular places? And how

prices are determined through financial benchmarks. Benchmarks are metrics that are formulated to reflect limited

can federal conservation agencies comply with executive and administrative orders to incorporate climate change

slivers of the markets. They are essential to the efficient functioning of the markets and are used in a wide variety

into management plans?

of ways — from pricing oil, to setting interest rates for consumer lending, to valuing complex financial instruments.

Professor Rob Fischman, with affiliated Indiana Law professor Vicky Meretsky, employed a clinical teaching

As detailed in her article On the Regulation of Benchmarks, Associate Professor Gina-Gail Fletcher shows that

approach to answer these questions. Organizing a group of students who worked as consultants to the US Fish and

benchmarks have also been at the epicenter of numerous, multi-year market manipulation scandals in recent years.

Wildlife Service, the professors created a database coding important aspects of all recently adopted plans governing

Oil traders, for example, deliberately execute trades to artificially drive benchmarks lower, which allows the trader to

management of the national wildlife refuges. Their database covers a little over half of the 562 refuges. The refuge

capitalize on the manipulated benchmark. This ensures that later trades relying on the benchmark are more profit-

plans embody state-of-the-art federal planning, but expose a wide gulf between what scholarship recommends and

able than they otherwise would have been. Such manipulative practices have far-reaching and, in some instances,

what conservation managers employ.

destabilizing effects on the financial markets. In responding to these benchmark manipulation scandals, regulators

Coastal habitat faces the most serious, existential threat: sea‒level rise. As a result, coastal wetland managers developed the most detailed set of actions to respond to climate change. Even in that category, plans fall short in describing how to respond if monitoring shows that interventions are not working. Most of the management solutions promote resistance through armoring and adding sediment to push back against rising sea levels. At some

have relied on the existing anti-manipulation framework, which is based solely on ex-post prosecution of wrongdoers. As such, the current framework treats benchmark manipulation as just another form of market manipulation. But as more benchmark‒manipulation schemes come to light, the effectiveness of traditional approaches for curbing benchmark manipulation is dubious.

point, however, resistance will be futile, and coastal refuges will need to facilitate transformations to new ecosystems

Fletcher’s article provides the first in-depth analysis of the differences between benchmark manipulation and other

and also move inland to higher ground. Other conservation areas discuss projected changes in species composi-

forms of market manipulation. Her analysis demonstrates that benchmark manipulation cannot be adequately

tion, but a minority have formulated ecological objectives to respond. In general, the spread of diseases and

addressed through ex-post enforcement actions alone. In failing to recognize how benchmark manipulation differs

parasites receives much less attention in practice than it should, given the magnitude of the threats. In an article on

from traditional manipulation, regulators miss a prime opportunity to oversee a key facet of the financial markets

their research, Fischman, Meretsky, and a group of students published concrete examples of specific, measurable,

and thereby safeguard market integrity. By focusing on the unique attributes of benchmarks that make them sus-

achievable, results-oriented, and time-fixed objectives for achieving adaptation.

ceptible to manipulation, Fletcher’s article puts forward a comprehensive prescriptive regulatory framework aimed at

........................................................................................... Planning for Adaptation to Climate Change: Lessons from the US National Wildlife Refuge System, 64 BIOSCIENCE 993-1005 (2014).

4

Gina-Gail S. Fletcher / Associate Professor of Law

detecting and minimizing benchmark manipulation, rather than merely punishing these practices after the fact. ........................................................................................... On the Regulation of Benchmarks, http://ssrn.com/abstract=2776731

5


Leandra Lederman / William W. Oliver Professor of Tax Law

H. Timothy Lovelace / Associate Professor of Law; Affiliated Faculty, Department of History

have you been hearing a one-sided story about the IRS’s treatment of nonprofits?

how did an African American journalist’s reporting on the Cuban revolution influence global human rights?

The Internal Revenue Service made headlines when a tax watchdog, the Treasury Inspector General for Tax

In 1962, William Worthy, a reporter for the Baltimore Afro-American and a member of the Fair Play for Cuba commit-

Administration (TIGTA), reported that “inappropriate criteria were used to identify tax-exempt applications for review.”

tee, was convicted in federal district court for returning to the United States without a passport. The conviction arose

TIGTA found that the IRS used key words, such as “Tea Party,” to flag for further review organizations that were

from his secret travel to Cuba — in defiance of Department of State regulations — in order to study racial politics on

applying for tax-exempt status under Code section 501(c)(4), a section that allows only limited political activity.

the island. The first US citizen indicted for violating the travel ban to Cuba, Worthy charged that he was being selec-

Congress and the media quickly accused the IRS of targeting Tea Party and other conservative organizations.

tively prosecuted because of his radical journalism.

In “IRS Reform: Politics As Usual?,” Professor Leandra Lederman tells the more complete story largely missing

Using archival records only recently made available to researchers, Associate Professor H. Timothy Lovelace

from the media coverage. She explains that an underfunded IRS was experiencing a deluge of tax-exemption

shows that although the State Department had the names of more than 200 US citizens who had defied the travel

applications. Meanwhile, while some Congressional Democrats were pushing the IRS to enforce 501(c)(4)’s limits on

ban to Cuba, they chose only to prosecute Worthy. Lovelace then examines Worthy’s challenge to Cold War

political activity, some Congressional Republicans asked TIGTA to investigate whether conservative organizations

limitations on US citizens’ right to travel. Worthy framed his argument around the Fifth Amendment and Article 13(2)

were experiencing delays in their exemption applications. TIGTA’s May 2013 report did not include any information

of the Universal Declaration of Human Rights, and the Fifth Circuit eventually overturned his conviction, declaring

on or comparisons with the treatment of progressive organizations, although progressive buzzwords, such as

that “inherent in the concept of citizenship . . . [is] a right to return.”

“Occupy,” were also on the IRS’s key-word lists. TIGTA found that ineffective management by the IRS of employees in Cincinnati who developed the inappropriate key-word criteria caused the delays. The FBI and the Department of Justice also investigated and found evidence of IRS mismanagement, but not of criminal activity. The rhetoric that the IRS targeted conservative organizations held sway despite the evidence that the IRS was ineffectual rather than malevolent, partly because tax collection agencies have few defenders. Largely one-sided Congressional IRS hearings harm tax administration, as does an underfunded IRS. Moreover, inadequate enforcement of progressive taxation can actually increase income inequality. Accordingly, Lederman argues in a related short article, “The IRS, Politics, and Income Inequality,” that supporters of progressive taxation use the fight against rising income inequality as a rhetorical tool to help the IRS receive more balanced treatment from Congress. ...........................................................................................

Lovelace also demonstrates that Worthy’s efforts to domesticate human rights in the US had global ramifications. The United Nations Sub-Commission on the Prevention of Discrimination and the Protection of Minorities relied on Worthy’s prosecution in Jim Crow‒era Miami to author its landmark Study of Discrimination in Respect of the Right of Anyone to Leave Any Country, Including His Own, and to Return to His Country. Lovelace returns to Bloomington this fall after completing a prestigious one-year fellowship at Princeton University’s Program in Law and Public Affairs. ........................................................................................... Cold War Stories: William Worthy, the Right to Travel, and Afro-American Reporting on the Cuban Revolution, JOURNAL OF AMERICAN HISTORY (July 2016).

IRS Reform: Politics As Usual?, 7 COLUMBIA TAX JOURNAL (forthcoming 2016). The IRS, Politics, and Income Inequality, 150 TAX NOTES 1329 (Mar. 14, 2016).

6

7


Pamela Foohey / Associate Professor of Law

what does a church do when it is about to go bust? Like any business, churches can and do experience financial distress. This financial distress typically causes churches to fall behind on mortgage payments on church buildings. Church leaders could try to solve their churches’ problems on their own. Perhaps leaders do not view the problems as legal, but rather as a private matter

2016 Andrew Carnegie Fellow

how can an interdisciplinary approach help us understand and improve the judicial selection process?

between churches and creditors. Yet every year about 90 religious organizations seek to reorganize under

When scholars write about judges, it is often like a remake of the ancient Indian fable of the three blind men and

Chapter 11.

the elephant. Scholars from different disciplines each study one piece of the larger animal. The law professor thinks

In a recent article in the Ohio State Law Journal, Associate Professor Pamela Foohey draws on her original empirical investigation of Chapter 11 bankruptcy cases filed by religious organizations (mainly Christian churches) to answer that question. Through this inquiry, the article sheds light on longstanding questions about how people and organizations decide to use the legal system versus doing nothing or solving problems through self-help, as well as questions about how people’s feelings of shame and stigma influence their decisions to file bankruptcy. Foohey’s interviews with 45 of these churches’ leaders and bankruptcy attorneys reveal that leaders indeed initially did not think of their congregation’s financial problems as legal problems. Instead, they struggled to solve the problems themselves through self-help and negotiation with creditors. Most often creditors’ threats of foreclosure brought law to leaders’ attention. At that point, leaders turned to their social networks for help in understanding their legal options, including bankruptcy, as well as for help in reconciling their view that filing for bankruptcy must be avoided with the reality that Chapter 11 was their last remaining option for saving their congregations. In addition to contributing to emerging literature about how people come to the legal system, the article’s findings provide the first assessment of how leaders of small businesses decide to file for bankruptcy. Foohey was recently invited to join the Consumer Bankruptcy Project as a co-investigator. The CBP has been the leading empirical study of consumer bankruptcy for the past 35 years. ........................................................................................... When Faith Falls Short: Bankruptcy Decisions of Churches, 76 OHIO STATE LAW JOURNAL 1319 (2015).

8

Charles Gardner Geyh / John F. Kimberling Professor of Law and

about the role that judges play in upholding the rule of law. The political scientist thinks about how the decisions judges make are influenced by their ideological preferences and strategic choices. The psychologist thinks about the conscious and subconscious workings of the judicial mind, and the influence of race, gender, emotion, and other cognitive and behavioral biases. The economist thinks about judges as rational, self-interested actors, who make choices that seek to maximize what judges value. In his new book, Courting Peril: The Political Transformation of the American Judiciary, Professor Charles Gardner Geyh proceeds from the premise that each of these disciplines offers valuable insights into isolated pieces of the judicial function, but that a composite picture drawn from a deeply interdisciplinary approach is needed to understand the beast in its entirety. To that end, he advocates a new way of thinking about judges—from what influences the decisions they make, to how they should be selected, removed, and regulated—with reference to the law, politics, psychology, sociology, anthropology, economics, literature, and history of judging. Such extralegal influences cannot be eliminated, he argues, but they can be managed. By reorienting to this new paradigm, Geyh shows that support for an independent but accountable judiciary can be preserved. Geyh was recently named an Andrew Carnegie Fellow and received a grant from the Carnegie Corporation to research and write a book based on his proposal “Lies, Damn Lies, and Judicial Elections: Transcending the Shrill Public Policy Debate over Judicial Selection in America.” ........................................................................................... COURTING PERIL: THE POLITICAL TRANSFORMATION OF THE AMERICAN JUDICIARY (Oxford University Press, 2016).

9


Donna M. Nagy / Executive Associate Dean for Academic Affairs and C. Ben Dutton Professor of Law

does a corporate insider who gratuitously shares material nonpublic information with a friend or relative — with no expectation of receiving anything in return — commit securities fraud? The Supreme Court is poised to answer that question in Salman v. United States, after steering clear of insider trading law for nearly two decades. It has been even longer still since the Court last addressed securities fraud liability relating to stock trading tips; it articulated a “personal benefit” test for tipper-tippee liability in 1983 in Dirks v. SEC, a decision reinforcing the “classical” theory of insider trading. In 2015, a circuit split arose as to whether gratuitous tipping constitutes a violation of the antifraud provisions in the federal securities laws, and the Court has granted certiorari in Salman to resolve that issue. In Beyond Dirks: Gratuitous Tipping and Insider Trading, Executive Associate Dean Donna Nagy suggests a new

Christiana Ochoa / Professor of Law and Charles L. Whistler Faculty Fellow;

Associate Vice Provost for Faculty and Academic Affairs; Associate Director, IU Center for Documentary Research and Practice

how can the law help assure economic well-being and personal security in an era of constrained natural resources? The homogeneous core of the modern approach to the global economy is a perpetual insistence on growth. Law lends important tools to this growth imperative, with contracts, property and the resolution of contract- and property-based disputes serving vital roles in facilitating economic growth. This has been the traditional role of law in development. Professor Christiana Ochoa’s current research is situated among the challenges to the growth imperative and centered on the basic observation that we live in a finite system. No matter how much we try, we cannot make the earth or its natural resources grow. Some scholars recognize the instability and unsustainability of so much of our economic practice and have thus turned our attention toward “sustainable development,” or “sustainability.” Ochoa’s current research deviates slightly from these foci and engages with literatures in other fields and practices that articulate alternatives to growth. As a legal academic, she is particularly interested in the tools law might offer to reveal alternative approaches to human well-being that are based less

framework for analyzing the legality of “gratuitous tipping.” Her analysis draws from a potent combination of three

on growth and more on assurances of having enough: enough clean water and food, engagement with the commu-

post-Dirks developments in corporate and securities law: 1) the Court’s endorsement of the “misappropriation”

nities that matter to us, engagement in political processes, and enough access to economic and personal security.

theory in United States v. O’Hagan; 2) the SEC’s decision to effectively ban the practice of selective disclosure through its adoption of Regulation FD; and 3) state court decisions that construe fiduciary disloyalty to include not only self-dealing but also other actions taken by agents in bad faith. The article further argues that these developments pave the way for a clearer doctrine of tipper-tippee liability that turns on whether a tipper has breached a duty of loyalty, whether or not the tipper conveyed inside information for personal gain. These developments likewise lay the groundwork for the Court to reconceptualize insider trading jurisprudence generally. Specifically, the Court could seize this opportunity to look beyond Dirks and consolidate its prior complementary theories of insider trading liability — the classical and misappropriation theories — into a new unified framework that would regard insider trading as a “fraud on investors.”

Ochoa’s research area is novel. Indeed, in order to begin to understand it well, and articulate it with any success, she has delved into field work and consulting with governments considering granting natural resource licenses to mining companies in order to gain first-hand, empirical knowledge of the potential roles law can play in structuring agreements and statutory arrangements that emphasize well-being over growth. Her work appears in a recent documentary film, Otra cosa no hay (There Is Nothing Else), in addition to a wide array of legal academic articles. By doing so she has connected with a rapidly emerging cadre of academics, in law and in virtually every other field, who recognize the power of film to make the findings of research accessible to colleagues and students, as well as to policy makers and larger publics. The enthusiasm around these important changes in academic scholarship have resulted in the newly founded Center on Documentary Research and Practice at Indiana University, of which

...........................................................................................

Ochoa has been named associate director.

Beyond Dirks: Gratuitous Tipping and Insider Trading, 42 J. CORP. LAW 1 (Fall 2016, forthcoming).

........................................................................................... OTRA COSA NO HAY (THERE IS NOTHING ELSE) (Enlalucha Films, 2014).

10

11


Victor D. Quintanilla / Associate Professor of Law; Adjunct Faculty, Department of Psychological and Brain Sciences

Deborah A. Widiss / Professor of Law

how should the scope of the same-actor doctrine be adjusted to account for legislative history and psychological science?

what does the marriage equality decision mean for non-marital families?

One of the most egregious examples of the tension between federal employment discrimination law and psycho-

In a series of recent articles, Professor Deborah A. Widiss has examined how the marriage equality decisions

logical science is the federal common law doctrine known as the same-actor inference. Under this doctrine, when a

in United States v. Windsor and Obergefell v. Hodges relate to family law more generally. Windsor rectified a deep

supervisor first behaves in a way that benefits an employee and then subsequently takes adverse action against that

inequality in the law — that same-sex marriages were categorically denied federal recognition — but in so doing,

employee, many federal courts conclude that the supervisor’s adverse treatment is presumptively nondiscriminatory,

it embraced a traditional understanding of marriage as superior to all other family forms. The Court’s valorization of

adopting the strong inference that the negative employment decision was not motivated by bias.

the unique “specialness” of marriage denigrates non-marital families – at a time when more than 40% of babies

When originally elaborated by the Fourth Circuit in Proud v. Stone, the same-actor doctrine applied only when an

born in this country have unmarried parents, and when marriage rates increasingly diverge by race and class.

“employee was hired and fired by the same person within a relatively short time span.” In the two decades since,

The lesbian, gay, and bisexual (LGB) community is part of these larger trends. Demographers believe that the

the doctrine has widened and broadened in scope. It now subsumes many employment contexts well beyond hiring

majority of children currently being raised by same-sex couples were conceived in prior heterosexual relationships

and firing, to scenarios in which the “same person” entails different groups of decision makers, and the “short time

that included a member of the couple. Same-sex couples with relatively low levels of educational attainment are

span” has been elastically extended over seven years.

more likely to be raising children than couples with advanced degrees; same-sex couples that include racial minori-

In a newly published article, Associate Professor Victor D. Quintanilla and co-author Cheryl R. Kaiser conclude that this doctrine should be curtailed. Given the dearth of textual support and legislative history supporting the creation of the same-actor doctrine, the striking growth rate of this unjust doctrine in circuits that apply the stronginference standard, and the psychological science that powerfully reveals the errors laden within the doctrine, federal courts should reevaluate their existing jurisprudence on the same-actor inference. Ultimately, the article recommends that federal courts resolve the existing circuit split by adopting the Seventh Circuit’s approach: Same-actor evidence should be one evidentiary datum for the ultimate trier of fact to weigh along with all other possible evidence of discrimination.

ties are also more likely to be raising children than white couples. If marriage and divorce by same-sex couples follow more general trends, the members of the LGB community who are statistically most likely to be raising children are also statistically least likely to marry and remain married. Accordingly, even if same-sex couples enjoy universal marriage rights, it is essential to continue to advocate support of non-marital families and other blended family forms that depart from the “traditional” nuclear family. ........................................................................................... Non-Marital Families and (or After?) Marriage Equality, 42 FLORIDA STATE LAW REVIEW 547 (2015).

Quintanilla resumes his duties at the law school in the fall of 2016, when he returns from a one-year fellowship at the Center for Advanced Study in the Behavioral Sciences at Stanford University. ........................................................................................... The Same-Actor Inference of Nondiscrimination: Moral Credentialing and the Psychological and Legal Licensing of Bias, 104 CALIFORNIA LAW REVIEW 1 (2016).

12

13

Recent faculty scholarship