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Situating Structural Challenges To Agency Authority Within The Framework Of The Finality Principle, Harold J. Krent

Indiana Law Journal

No abstract provided.

Corporatizing Administrative Law For Economic Constitutionalism In Ghana: An African Legal Study, Rowland Atta-Kesson

Maurer Theses and Dissertations

As the Government of Ghana partners the private sector to promote district industrialization in Ghana under what is locally called “one-district-one factory” (1D1F), this study argues that it is important to foster economic constitutionalism with legal and institutional innovations. One such innovation is this study’s emergent or grounded theory of corporatized administrative law. The study is unique because it contributes to the so-called new administrative law theory with fresh evidence from Ghana on the interface between the public and private sectors under the district industrialization program. The key problem is the challenge that democratic policy discontinuity poses to business protection …

Les Deux Constitutions De John Marshall : Une Relecture De L’Arrêt Marbury V. Madison, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

The Resilient Foundation Of Democracy: The Legal Deconstruction Of The Washington Posts's Condemnation Of Edward Snowden, Hanna Kim

Indiana Law Journal

On September 17, 2016, The Washington Post (“the Post”) made history by being the first paper to ever call for the criminal prosecution of its own source —Edward Snowden. Yet, two years prior to this editorial, the Post accepted the 2014 Pulitzer Prize in Public Service for its “revelation of widespread secret surveillance by the National Security Agency”—an honor which would not have been bestowed had Snowden not leaked the documents through this news outlet. The other three major media outlets that received and published Snowden’s documents and findings—The Guardian, The New York Times, and The Intercept—all have taken the …

Misreading And Mobility In Constitutional Texts: A Nineteenth Century Case, Iza Hussin

Indiana Journal of Global Legal Studies

This article explores the case of the adoption of Southeast Asia's first constitution (Johor, 1895) to articulate a fundamental problem of translation-the ambiguity and multiplicity of law's language. Closer attention to this problem helps raise a number of possibilities for rethinking the relationship between law, language, and mobility: firstly, polyphony, dissonance, and divergence in law's language reveals a plethora of political possibilities, audiences, and actors in the making of law; secondly, these ambiguities and multiplicities are integral to law's mobility; thirdly, rather than transmissions of law from center to periphery, law moves in circulations that are iterative, contingent, and patterned. …

Expanding Constitutionalism, Gunther Teubner, Anna Beckers

Indiana Journal of Global Legal Studies

Transnational Societal Constitutionalism Symposium, Collegio Carlo Alberto, Turin Italy, May 17-19, 2012

Jurisgenerative Constitutionalism: Procedural Principles For Managing Global Legal Pluralism, Paul Schiff Berman

Indiana Journal of Global Legal Studies

Global Legal Pluralism recognizes the inevitability (and sometimes even the desirability) of multiple legal and quasi-legal systems purporting to regulate the same act or actor. However, the resulting pluralism-just as inevitably-creates conflicts among norms that are potentially intractable. Thus, legal systems must address how best to respond to the realities of pluralism. This inquiry has constitutional dimensions because it goes to the constitutive character of communities and their relationships with other communities, be they international, transnational, national, subnational, or epistemic.

One response to pluralism is jurispathic: "kill off" all competing laws by declaring that one set of norms-and only one-shall …

A Sociology Of Constituent Power: The Political Code Of Transnational Societal Constitutions, Christopher Thornhill

Indiana Journal of Global Legal Studies

This article proceeds from a critical sociological revision of classical constitutional theory. In particular, it argues for a sociological reconstruction of the central concepts of constitutional theory: constituent power and rights. These concepts, it is proposed, first evolved as an internal reflexive dimension of the modern political system, which acted originally to stabilize the political system as a relatively autonomous aggregate of actors, adapted to the differentiated interfaces of a modern society.

This revision of classical constitutional theory provides a basis for a distinctive account of transnational constitutional pluralism or societal constitutionalism. The article argues that the construction of transnational …

We And Cyberlaw: The Spatial Unity Of Constitutional Orders, Hans Lindahl

Indiana Journal of Global Legal Studies

This paper scrutinizes the fundamental assumption governing Gunther Teubner's theory of societal constitutionalism, namely that societal constitutions are ultimately about the regulation of inclusion and exclusion in global function systems. While endorsing the central role of inclusion/exclusion in constitutions, societal or otherwise, I argue that inclusion and exclusion are primordial categories of collective action, rather than functional categories. As a result, the self-closure which gives rise to a legal collective is spatial as much as it is temporal, and subjective no less than material. Inasmuch as legal orders must establish who ought to do what, where, and when, this entails, …

On The Politics Of Societal Constitutionalism, Emilios Christodoulidis

Indiana Journal of Global Legal Studies

This paper is an internal critique of the theory of societal constitutionalism as developed by Gunther Teubner, with a specific emphasis on the constitutional and the political dimensions of the theory. As critique it focuses on the arguably unacknowledged dangers of co-option: the danger that constitutionalization, as an ongoing process, undercuts what we typically associate with the constitutional, which is its framing function; that this problem is accentuated when it comes to the transnational; and that its reflexivity runs the danger of market capture, in which case it remains only nominally political. The danger of market capture for societal constitutionalism …

The Future Of Societal Constitutionalism In The Age Of Acceleration, Riccardo Prandini

Indiana Journal of Global Legal Studies

The aim of this article is to reframe the debate on societal constitutionalism and constitutionalization from a spatial to a temporal framework. This analytical shift is due to the dramatic acceleration of societal processes, which are increasingly crossing the spatial boundaries of nation-states and of all the other social structures embedded in peculiar places. This high-speed society is characterized by the so-called temporalization of complexity, which influences every aspect of social life and, in particular, the "validity" of law. On the basis of this theoretical background, I would like to show that changing the form of observation from a spatial …

Transnational Normative Orders: The Constitutionalism Of Intra- And Trans-Normative Law, Poul F. Kjaer

Indiana Journal of Global Legal Studies

No weakening, but rather an expansion, of statehood can be observed in the contemporary world. This does not, on the other hand, imply that extensive forms of constitutional ordering do not exist outside the realm of states. Instead, the evolution of world society has been characterized by a protracted dual movement where the expansion and densification of statehood and autonomous forms of transnational ordering gradually emerged in a mutually constitutive fashion. One implication of this is that neither the concept of the state nor the concept of nonstate transnational entities is adequately capable of delineating the object of constitutional analysis. …

Occupy The System! Societal Constitutionalism And Transnational Corporate Accounting, Moritz Renner

Indiana Journal of Global Legal Studies

Today's most pressing constitutional question is posed by a global economic system whose expansive tendencies seem no longer controllable. In addressing this question, the theory of Societal Constitutionalism apparently shifts established ideological coordinates by developing a theory of the self-constitutionalization of social spheres. It seeks to combine the virtues of grassroots democracy with the sophistication of systemic social theory. Thus, its normative claim can be formulated as an oxymoron: "Occupy the System!" The claim is an oxymoron because it points to the apparent impossibility of critical social theory in a functionally differentiated society: How can a functional system such as …

Fundamental Rights, Private Law, And Societal Constitution: On The Logic Of The So-Called Horizontal Effect, Florian Roedl

Indiana Journal of Global Legal Studies

The paper raises the issue of a normative justification of the horizontal effect of fundamental rights in private law. Justification in this sense means that the reasons given are neither functional nor instrumental, but that the reasons are supposed to be subject to the intrinsic logic of private law. In traditional doctrine, the reason usually given to confer horizontal effect to fundamental rights is a deferral to the constitution: The constitutional text decides whether and how fundamental rights apply to private legal relationships. This answer implies that fundamental rights are either logically or normatively alien to private law, that they …

Societal Constitutionalism, Social Movements, And Constitutionalism From Below, Gavin W. Anderson

Indiana Journal of Global Legal Studies

Within constitutional theory, in comparison to other fields of scholarship, the significance of transnational social movements has been relatively unexamined in the literature. Societal constitutionalism, grounded in the sociological method and open to reexamining received understandings of constitutionalism, would appear conducive to undertaking this enterprise. However, the general absence of social movements from the societal constitutionalism literature is not coincidental, and reflects a shared commitment with more conventional approaches to an institutional conception of constitutionalism, and a belief in the latter's necessary benevolence and Western origin. These assumptions reflect the limited focus of contemporary analyses of globalization and constitutionalism upon …

Transnational Corporations' Outward Expression Of Inward Self-Constitution: The Enforcement Of Human Rights By Apple, Inc., Larry Cata Backer

Indiana Journal of Global Legal Studies

Societal constitutionalism presents us with alternatives to state-centered constitutional theory. But this alternative does not so much displace as extend conventional constitutional theory as a set of static premises that structure the organization of legitimate governance units. Constitutional theory, in either its conventional or societal forms, engages in both a descriptive and a normative project-the former looking to the incarnation of an abstraction and the later to the development of a set of presumptions and principles through which this incarnation can be judged. Constitutional theory is conventionally applied to states-that is, to those manifestations of organized power constituted by a …

Constitutionalization Of Nongovernmental Certification Programs, Jaye Ellis

Indiana Journal of Global Legal Studies

Certification programs created by nonstate actors such as the Forest Stewardship Council and Marine Stewardship Council are innovative and potentially highly effective governance initiatives. This article works from the premise that these Councils can be understood as political authorities promulgating law. These Councils, and other actors like them, are generally analyzed from the point of view of governance, which triggers questions about their effectiveness and legitimacy. The approach adopted here shifts the focus to questions of their authority and the validity of the rules, standards, and decision-making processes that they have put in place. The Councils have put in motion …

The Framers' Intent: John Adams, His Era, And The Fourth Amendment, Thomas K. Clancy

Indiana Law Journal

No abstract provided.

First Amendment Investigations And The Inescapable Pragmatism Of The Common Law Of Free Speech, Lawrence Rosenthal

Indiana Law Journal

No abstract provided.

Signing Unconstitutional Laws, William Baude

Indiana Law Journal

It has become fairly common for Presidents to sign laws that they think are unconstitutional, at least in part. Some scholars argue that this is unconstitutional. Others defend it, but on pragmatic grounds, as if one cannot afford to be a constitutional formalist in today’s government.

Both sides are wrong. In a wide range of cases, there is nothing wrong with signing unconstitutional laws. Indeed, it is required. Yet the President must exercise this power responsibly. He must have other constitutional duties that justify signing the remainder of the bill into law, and he must be prepared to use his …

Judicial Activism And The Interpretation Of The Voting Rights Act, Luis Fuentes-Rohwer

Articles by Maurer Faculty

From the moment the U.S. Supreme Court first confronted the difficult constitutional questions at the heart of the Voting Rights Act, its posture has been one of deference. This posture has continued to this day. In contrast, the Court has interpreted the language of the Act dynamically, often in total disregard to the text of the law or the intent of Congress. But as this Article explains, the Roberts Court appears poised to unsettle this longstanding narrative. The Act is in serious constitutional danger. One way to explain this move on the part of the Court is by invoking the …

Regulating Student Speech: Suppression Versus Punishment, Emily Gold Waldman

Indiana Law Journal

No abstract provided.

Free Speech And National Security, Geoffrey R. Stone

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

Judicial Activism And Fourteenth Amendment Privacy Claims: The Allure Of Originalism And The Unappreciated Promise Of Constrained Nonoriginalism, Daniel O. Conkle

Articles by Maurer Faculty

Among other meanings, "judicial activism" can be defined as judicial decisionmaking that frustrates majoritarian self-government and that is unconstrained by law. So understood, judicial activism is presumptively problematic, because it frustrates customary democratic and judicial norms.

In this essay, I address originalist and nonoriginalist responses to the presumptive problem of judicial activism in the context of Fourteenth Amendment privacy claims, including claims relating to abortion, sexual conduct, and same-sex marriage. I argue that originalism is an overrated solution, largely because current understandings of originalism, despite claims to the contrary, do not provide standards of decision that are sufficiently clear to …

Exploring The Use Of The Word "Citizen" In Writings On The Fourth Amendment, M. Isabel Medina

Indiana Law Journal

Symposium: Latinos and Latinas at the Epicenter of Contemporary Legal Discourses. Indiana University School of Law-Bloomington, March 2007.

Constitutional Possibilities, Lawrence B. Solum

Indiana Law Journal

No abstract provided.

The Aggregate Harmony Metric And A Statistical And Visual Contextualization Of The Rehnquist Court: 50 Years Of Data, Peter A. Hook

Articles by Maurer Faculty

This article contains aggregated data from fifty years of the annual matrixes of justice inter-agreement for particular Supreme Court terms published by the Harvard Law Review (1956 to 2005 terms). Aggregating how often any two justices sided together on cases for a particular term relative to the amount of cases the two justices heard together allows one to derive a measure of the particular term that reflects the relative amount of agreement or disagreement for the term. This new metric, called the Aggregate Harmony Metric, allows for comparative benchmarks. For instance, the 2005 term, with an aggregate agreement of 70%, …

The War Powers Outside The Courts, William Michael Treanor

Indiana Law Journal

Symposium: War, Terrorism and Torture: Limits on Presidential Power in the 21st Century. Convened by the American Constitution Society for Law and Policy and the Indiana University School of Law- Bloomington, prominent legal scholars, human rights advocates and government lawyers gathered in Bloomington on October 7, 2005.

The Use And Misuse Of Comparative Constitutional Law (The George P. Smith Lecture In International Law), Cheryl Saunders

Indiana Journal of Global Legal Studies

This article examines the extent and nature of the use of foreign law in constitutional adjudication in common law systems outside the United States, with special reference to Australia. Demonstrating that the courts of other common law jurisdictions use foreign case law readily, naturally, and for a variety of purposes, the article reaches two broad conclusions: (1) as a generalization, other common law countries do not share the concern about the legitimacy of comparative precedents that manifests itself in the United States, and (2) as a consequence, other common law countries necessarily share with the United States an interest in …

Structuring Sentencing: Apprendi, The Offense Of Conviction, And The Limited Role Of Constitutional Law, Benjamin J. Priester

Indiana Law Journal

No abstract provided.