The Indiana Law Journal & The Indiana Law Journal Supplement - Articles - Volume 82, Issue 1

Daubert's Erie Problem

no@spam.com (Jennifer M. Wolsing) — Thu, 04 Oct 2007 11:44:32 EDT

In Daubert v. Merrell-Dow Pharmaceuticals, the Supreme Court established the federal trial court judge as an evidentiary gatekeeper. Under this new role, the Ninth and Eleventh Circuits created strict guidelines for the admission of scientific evidence.The new federal guidelines are sometimes more severe than the state standards within their circuits. A federal plaintiff otherwise able to admit evidence of causation in state court is barred from doing so in federal court, which leads to the case's dismissal on summary judgment. This outcome difference encourages eligible defendants to remove to federal courts, thus prejudicing some forum-state plaintiffs.This Note argues that the outcome differences between the Ninth and Eleventh Circuits and the state courts within their boundaries pose an Erie problem in diversity cases where the federal rule is stricter than the state rule.

Delaware Strikes Back: Newcastle Partners and the Fight for State Corporate Autonomy

no@spam.com (Michael W. Ott) — Wed, 03 Oct 2007 20:28:18 EDT

Historically, Congress has left the regulation of the internal governance of corporations to the states. Under the internal affairs doctrine, states create corporations, prescribe their power, and define the rights that are acquired by purchasing their shares. Once a business chooses a state in which to incorporate, only the laws of that state govern the internal affairs of the corporation. For the better part of the last century, Delaware has dominated the American corporate boardroom. However, the Enron and Worldcom scandals awoke the federal giant. In response, Congress passed Sarbanes-Oxley, the most intrusive federal corporate law ever written. With this emerging federal intrusion into traditionally state-controlled law, it was only a matter of time before the Delaware courts confronted a direct conflict between Delaware and federal corporate law. This conflict arose in November of 2005 in Newcastle Partners, L.P. v. Vesta Insurance Group, Inc. While the Delaware court probably arrived at the correct result, in the process it "bit its thumb" at the federal government and implied that Delaware's corporate lawmaking power is equal—or even superior—to that of the federal government. This Note examines the history of the war over corporate lawgiver boundaries and asks the ultimate question: is the era of Delaware corporate dominance at an end?

Let Privateers Marque Terrorism: A Proposal for a Reawakening

no@spam.com (Robert P. DeWitte) — Wed, 03 Oct 2007 20:21:19 EDT

Recent dialogue struggling to apply traditional methods of wartime legalism to the battle against terrorism has neglected one of Congress's oldest constitutional powers: the power to issue letters of marque and reprisal. Historically, letters of marque permitted private individuals, referred to as privateers, to pursue legitimate war aims for private gain. Not infrequently, nations dispatched privateers in an effort to thwart piracy. Piracy and terrorism share many parallels, suggesting that customization of tools effective against piracy could provide a vital resource in the fight against terrorism. This Note: (1) posits that despite international and domestic legal and policy obstacles, the return of privateers under letters of marque to combat terrorism is viable as a supplement to the wartime status quo; (2) offers solutions to various constraints; and (3) ultimately supplies a prologue to future debate.

Legislative Findings, Congressional Powers, and the Future of the Voting Rights Act

no@spam.com (Luis Fuentes-Rohwer) — Mon, 19 Mar 2007 13:27:34 EDT

In enacting the Voting Rights Act of 1965, Congress sought to overcome decades of outright refusal to enforce the Fifteenth Amendment. The statute was considered “harsh” and “punitive” by critics, and the Supreme Court partially agreed, calling the legislation “stringent,” “inventive,” and “uncommon.” Yet the Court ultimately sided with the national ruling coalition as represented by the administration and overwhelming congressional majorities. This Article examines the early internal debates over the constitutionality of the Act and concludes that the question of legislative findings played a key role. In particular, internal notes and memoranda from the Katzenbach cases reveal that Justice Brennan worried about the Court’s use of legislative findings in upholding congressional enactments. This unease helps explain the different approaches taken by the Court in South Carolina v. Katzenbach and Katzenbach v. Morgan to the question of congressional powers under the Reconstruction Amendments. As we look ahead to future constitutional challenges to the Voting Rights Act and question whether the statute will meet the Court’s newfound demands under its federalism revolution, this Article underscores Justice Brennan’s implicit admonition: in the end, the question of legislative findings will be nothing more than a smokescreen, as this will be a debate about judicial attitudes and the Court’s long-standing role as an integral member of the national ruling coalition.

Misplaced Angst: Another Look at Consent-Search Jurisprudence

no@spam.com (Daniel R. Williams) — Mon, 19 Mar 2007 13:20:03 EDT

In examinging Fourth Amendment searches and seizures, this Article makes a distinction between the concepts of "consent" and "voluntariness." The former need not entail the latter, suggests the piece, since "consent" is nothing more than a label placed on a given police/suspect interaction in order to legitimate that interaction. Professor Williams, an accomplished attorney whose clients include Mumia Abu-Jamal, wrote this piece specifically for the Indiana Law Journal, in response to Professor Ric Simmons's article Not "Voluntary" But Still Reasonable: A New Paradigm for Understanding the Consent Search Doctrine, published in Voume 80 of the Journal.

The Bluebook at Eighteen: Reflecting and Ratifying Current Trends in Legal Scholarship

no@spam.com (Christine Hurt) — Mon, 12 Mar 2007 13:08:58 EDT

This Article presents The Bluebook as an important chronicler of legal scholarship and practice. New rules and amendments to old rules serve as archeological proof of changes in how scholars and practitioners view and use “the law.” Like high school students rushing to grab a copy of their school’s yearbook to glimpse the personalities and events that captured the eye of school photographers, legal scholars can trace important movements in the law and legal scholarship from edition to edition. The Eighteenth Edition is no exception to this theory. This Article traces changes in the latest edition to recent developments in legal research and citation practices.

Compulsory Whiteness: Towards a Middle Eastern Legal Scholarship

no@spam.com (John Tehranian) — Sat, 10 Mar 2007 11:57:03 EST

This Article focuses on the difficulties posed by the classification of Middle-Eastern-Americans as "white" under most state and federal programs. The classification is particularly problematic for those seeking to use anti-discrimination laws and remedial action programs to quell the rise in discrimination against Middle-Eastern-Americans in the post-9/11 world. Additionally, the classification makes it difficult to gather accurate statistics regarding such discrimination, given the difficulties in separating information about Middle-Eastern-Americans from the white majority. Professor Tehranian also addresses general constructs of race, in hopes of provoking a critical dialogue about legal issues relevant to Middle-Eastern-Americans.