In 2015, the idea that someone could be held criminally responsible for another’s suicide because of their words swept through the media. At the time, Massachusetts did not have a law criminalizing the verbal encouragement of suicide. But it became the first state to find a way to incorporate this conduct into an involuntary manslaughter analysis, finding that words alone can suffice for wanton and reckless conduct in Commonwealth v. Carter. After Carter, Massachusetts and many other states enacted laws against suicide encouragement to avoid grappling with how to convict someone for this crime without an explicit law addressing it. In 2019, the Supreme Judicial Court of Massachusetts affirmed Michelle Carter’s conviction of involuntary manslaughter and sentenced her to fifteen months in prison. The court classified her texts to Roy as wanton and reckless conduct by incorporating a theory of “virtual presence.” The court considered this theory, Carter’s relationship with the victim, Carter’s persistent communication with Roy, and Carter’s knowledge of the victim’s fragile mental state. Additionally, it was noted that an ordinary person would have known the grave risk of texting “just do it” to a person suffering from mental illness and actively attempting to commit suicide. Ultimately, Carter’s text instructing Roy to “get back in” the truck after he had removed himself turned her words into enough to constitute “wanton and reckless” conduct needed for the involuntary manslaughter conviction, regardless of the fact that Carter was not physically present at the scene.
{"title":"Words Can Kill: The Necessary Shift in Indiana Law to Recognize the Potential for Physical Harm Caused by Encouraging Language","authors":"Abigail Means","doi":"10.18060/27649","DOIUrl":"https://doi.org/10.18060/27649","url":null,"abstract":"In 2015, the idea that someone could be held criminally responsible for another’s suicide because of their words swept through the media. At the time, Massachusetts did not have a law criminalizing the verbal encouragement of suicide. But it became the first state to find a way to incorporate this conduct into an involuntary manslaughter analysis, finding that words alone can suffice for wanton and reckless conduct in Commonwealth v. Carter. After Carter, Massachusetts and many other states enacted laws against suicide encouragement to avoid grappling with how to convict someone for this crime without an explicit law addressing it. In 2019, the Supreme Judicial Court of Massachusetts affirmed Michelle Carter’s conviction of involuntary manslaughter and sentenced her to fifteen months in prison. The court classified her texts to Roy as wanton and reckless conduct by incorporating a theory of “virtual presence.” The court considered this theory, Carter’s relationship with the victim, Carter’s persistent communication with Roy, and Carter’s knowledge of the victim’s fragile mental state. Additionally, it was noted that an ordinary person would have known the grave risk of texting “just do it” to a person suffering from mental illness and actively attempting to commit suicide. Ultimately, Carter’s text instructing Roy to “get back in” the truck after he had removed himself turned her words into enough to constitute “wanton and reckless” conduct needed for the involuntary manslaughter conviction, regardless of the fact that Carter was not physically present at the scene.","PeriodicalId":81517,"journal":{"name":"Indiana law review","volume":"51 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135147280","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Introduction I. Background A. Internet Marketing, AdWords, and Cookies B. Trademarks, the Lanham Act, and the Internet 1. Congressional Intent Behind the Protection of Trademarks 2. The Lanham Act 3. Secondary Splits on Initial Interest Confusion II. The Issues A. The Inefficiencies of the Multifactor Tests for Likelihood of Confusion B. Circuit Court Splits on Initial Interest Confusion C. Increasing Breadth, Intricacy, and Cost of Trademark Litigation III. Proposed Solutions A. Standardize Initial Interest Confusion 1. Bar Initial Interest Confusion if the Parties’ Products are Unrelated 2. Allow Initial Interest Confusion Regardless of Brevity of Confusion or Disclaimer Usage 3. Bar Initial Interest Confusion if Consumers are Sophisticated or Careful 4. Do Not Assume Consumers on the Internet to be Sophisticated or Careful 5. Do Not Assume Consumers of Expensive Products to be Sophisticated or Careful B. Abridge the Multifactor Likelihood of Confusion Tests in Digital Marketing Cases C. Replace the Multifactor Likelihood of Confusion Tests for Digital Marketing Cases Conclusion
{"title":"Confusion Mélange: A Call to Revise the Law on Trademark Infringement, Initial Interest Confusion, and Digital Marketing","authors":"Johnny Walsh","doi":"10.18060/27650","DOIUrl":"https://doi.org/10.18060/27650","url":null,"abstract":"Introduction I. Background A. Internet Marketing, AdWords, and Cookies B. Trademarks, the Lanham Act, and the Internet 1. Congressional Intent Behind the Protection of Trademarks 2. The Lanham Act 3. Secondary Splits on Initial Interest Confusion II. The Issues A. The Inefficiencies of the Multifactor Tests for Likelihood of Confusion B. Circuit Court Splits on Initial Interest Confusion C. Increasing Breadth, Intricacy, and Cost of Trademark Litigation III. Proposed Solutions A. Standardize Initial Interest Confusion 1. Bar Initial Interest Confusion if the Parties’ Products are Unrelated 2. Allow Initial Interest Confusion Regardless of Brevity of Confusion or Disclaimer Usage 3. Bar Initial Interest Confusion if Consumers are Sophisticated or Careful 4. Do Not Assume Consumers on the Internet to be Sophisticated or Careful 5. Do Not Assume Consumers of Expensive Products to be Sophisticated or Careful B. Abridge the Multifactor Likelihood of Confusion Tests in Digital Marketing Cases C. Replace the Multifactor Likelihood of Confusion Tests for Digital Marketing Cases Conclusion","PeriodicalId":81517,"journal":{"name":"Indiana law review","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135147283","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Flowers for the Arlington Heights Footnote: The Slow Demise of Mixed Motives Analysis","authors":"Sheri Lynn Johnson","doi":"10.18060/27643","DOIUrl":"https://doi.org/10.18060/27643","url":null,"abstract":"","PeriodicalId":81517,"journal":{"name":"Indiana law review","volume":"61 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135146379","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Teamwork Makes the Stream Work: Analyzing a Recent Addition to Indiana's Watershed Management Toolbox","authors":"Ian Kane Hahus","doi":"10.18060/27648","DOIUrl":"https://doi.org/10.18060/27648","url":null,"abstract":"","PeriodicalId":81517,"journal":{"name":"Indiana law review","volume":"2016 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135147281","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Establishing a Strict Liability Standard for Releasing Per- and Polyfluoroaklyl Substances (PFAS) in the Environment","authors":"Isra Haider","doi":"10.18060/27647","DOIUrl":"https://doi.org/10.18060/27647","url":null,"abstract":"","PeriodicalId":81517,"journal":{"name":"Indiana law review","volume":"159 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135147282","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Copyright for Robots?","authors":"Henry H. Perritt, Jr.","doi":"10.18060/27646","DOIUrl":"https://doi.org/10.18060/27646","url":null,"abstract":"","PeriodicalId":81517,"journal":{"name":"Indiana law review","volume":"56 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135146380","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The vast majority of 401(k) plan participants want access to investments that match their personal values, yet a small fraction of plans offer those types of investments. The culprit for the existing misalignment has been unstable regulation, which has discouraged plan fiduciaries from including some categories of investments, such as sustainable investments, on 401(k) plan menus. In late 2022, the Department of Labor issued guidance that for the first time explicitly states that fiduciaries do not violate their duty of loyalty by considering participant preferences when making investment-related decisions. This Article makes two unique contributions. First, it evaluates the research on participant preferences for sustainable investments. Second, it provides a framework that fiduciaries can use to assess and consider those preferences while simultaneously fulfilling their duties of loyalty and prudence. If fiduciaries adopt the framework developed in this Article, it could be a triple win. Data indicate, and experts believe, that employees will save more in their 401(k) plans if they have access to investments that support their personal values. An increase in retirement savings would help close the substantial pension gap that exists, particularly for young employees and women who are particularly vulnerable to under saving. Companies will benefit if employees place greater value on their 401(k) plans. And, the world would benefit from increased assets flowing to sustainable investments at a time when climate and social sustainability are close to or in crisis.
{"title":"Matching Preferences and Access: Sustainable Investing in 401(k) Plans","authors":"Dana M. Muir","doi":"10.18060/27644","DOIUrl":"https://doi.org/10.18060/27644","url":null,"abstract":"The vast majority of 401(k) plan participants want access to investments that match their personal values, yet a small fraction of plans offer those types of investments. The culprit for the existing misalignment has been unstable regulation, which has discouraged plan fiduciaries from including some categories of investments, such as sustainable investments, on 401(k) plan menus. In late 2022, the Department of Labor issued guidance that for the first time explicitly states that fiduciaries do not violate their duty of loyalty by considering participant preferences when making investment-related decisions. This Article makes two unique contributions. First, it evaluates the research on participant preferences for sustainable investments. Second, it provides a framework that fiduciaries can use to assess and consider those preferences while simultaneously fulfilling their duties of loyalty and prudence. If fiduciaries adopt the framework developed in this Article, it could be a triple win. Data indicate, and experts believe, that employees will save more in their 401(k) plans if they have access to investments that support their personal values. An increase in retirement savings would help close the substantial pension gap that exists, particularly for young employees and women who are particularly vulnerable to under saving. Companies will benefit if employees place greater value on their 401(k) plans. And, the world would benefit from increased assets flowing to sustainable investments at a time when climate and social sustainability are close to or in crisis.","PeriodicalId":81517,"journal":{"name":"Indiana law review","volume":"86 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135147284","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Developments in Indiana Appellate Procedure: Rule Amendments, Remarkable Case Law, and Court Guidance for Appellate Practitioners","authors":"Bryan H. Babb, Bradley M. Dick, Seema R. Shah","doi":"10.18060/27444","DOIUrl":"https://doi.org/10.18060/27444","url":null,"abstract":"","PeriodicalId":81517,"journal":{"name":"Indiana law review","volume":"158 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135960016","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Recent Developments in Indiana Criminal Law and Procedure","authors":"Joel E. Schumm","doi":"10.18060/27447","DOIUrl":"https://doi.org/10.18060/27447","url":null,"abstract":"","PeriodicalId":81517,"journal":{"name":"Indiana law review","volume":"173 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135961471","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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