Open Access. Powered by Scholars. Published by Universities.®
- Publication Year
- Publication
- Publication Type
Articles 1 - 30 of 87
Full-Text Articles in Entire DC Network
Qualified Immunity And The Unintentional, Or Intentional, Chill On Free Speech, Madison Heiney
Qualified Immunity And The Unintentional, Or Intentional, Chill On Free Speech, Madison Heiney
Indiana Journal of Law and Social Equality
No abstract provided.
Serving Only To Oppress: An Intersectional And Critical Race Analysis Of Constitutional Originalism Inflicting Harm, Ethan Dawson
Serving Only To Oppress: An Intersectional And Critical Race Analysis Of Constitutional Originalism Inflicting Harm, Ethan Dawson
Indiana Journal of Law and Social Equality
“[T]imes can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” - Justice Anthony Kennedy, Lawrence v. Texas (2003)
This Note will first focus on a historical analysis of originalist constitutional interpretation, drawing attention to initial disparities in the Constitution incompatible with our current social context. It will discuss modern originalism as a method of perpetuating systemic shortcomings, drawing specific attention to originalist interpretation as a method of oppression against white women and people of color, specifically Black women. In analyzing the harm originalism does to …
Respeaking The Bill Of Rights: A New Doctrine Of Incorporation, Kurt Lash
Respeaking The Bill Of Rights: A New Doctrine Of Incorporation, Kurt Lash
Indiana Law Journal
The incorporation of the Bill of Rights against the states by way of the Fourteenth Amendment raises a host of textual, historical, and doctrinal difficulties. This is true even if (especially if) we accept the Fourteenth Amendment as having made the original Bill of Rights binding against the states. Does this mean we have two Bills of Rights, one applicable against the federal government with a “1791” meaning and a second applicable against the state governments with an “1868” meaning? Do 1791 understandings carry forward into the 1868 amendment? Or do 1868 understandings of the Bill of Rights carry backward …
Systemic Racism In The U.S. Immigration Laws, Kevin R. Johnson
Systemic Racism In The U.S. Immigration Laws, Kevin R. Johnson
Indiana Law Journal
This Essay analyzes how aggressive activism in a California mountain town at the tail end of the nineteenth century commenced a chain reaction resulting in state and ultimately national anti-Chinese immigration laws. The constitutional immunity through which the Supreme Court upheld those laws deeply affected the future trajectory of U.S. immigration law and policy.
Responding to sustained political pressure from the West, Congress in 1882 passed the Chinese Exclusion Act, an infamous piece of unabashedly racist legislation that commenced a long process of barring immigration from all of Asia to the United States. In upholding the Act, the Supreme Court …
Compelled Disclosure And The Workplace Rights It Enables, Catherine Fisk
Compelled Disclosure And The Workplace Rights It Enables, Catherine Fisk
Indiana Law Journal
Worker and consumer protection laws often rely on the regulated entity to notify workers or consumers of their legal rights because it is effective and efficient to provide information at the time and place where it is most likely to be useful. Until the Supreme Court ruled in NIFLA v. Becerra in 2018 that a California law regulating crisis pregnancy centers was an unconstitutional speaker-based, contentdiscriminatory regulation of speech, mandatory disclosure laws were constitutionally uncontroversial economic regulation. Yet, the day after striking down a disclosure law in NIFLA, the Court in Janus v. AFSCME Council 31 expanded the right of …
The Pledge Of Allegiance And Compelled Speech Revisited: Requiring Parental Consent, Caroline Mala Corbin
The Pledge Of Allegiance And Compelled Speech Revisited: Requiring Parental Consent, Caroline Mala Corbin
Indiana Law Journal
Since the Supreme Court decided West Virginia State Board of Education v. Barnette in 1943, free speech law has been clear: public schools may not force students to recite the Pledge of Allegiance. Nevertheless, in two states—Texas and Florida— students may decline to participate only with parental permission. The Eleventh Circuit Court of Appeals upheld the law on the grounds that the parental requirement furthered parents’ substantive due process right to control the upbringing of their children.
The Eleventh Circuit decision is flawed both in its understanding of the First Amendment right to be free of compelled speech and the …
Tort Law Implications Of Compelled Physician Speech, Nadia N. Sawicki
Tort Law Implications Of Compelled Physician Speech, Nadia N. Sawicki
Indiana Law Journal
Abortion-specific informed consent laws in many states compel physicians to communicate state-mandated information that is arguably inaccurate, immaterial, and inconsistent with their professional obligations. These laws face ongoing First Amendment challenges as violations of the constitutional right against compelled speech. This Article argues that laws compelling physician speech also pose significant problems that should concern scholars of tort law.
State laws that impose tort liability on physicians who refuse to communicate a state-mandated message often do so by deviating from foundational principles of tort law. Not only do they change the substantive disclosure duties of physicians under informed consent law, …
Nifla And The Construction Of Compelled Speech Doctrine, Robert Post
Nifla And The Construction Of Compelled Speech Doctrine, Robert Post
Indiana Law Journal
Virginia State Board of Education v. Barnette. There are good and convincing explanations for the Court’s decision in Barnette, but the Court’s recent expansion of the doctrine, culminating in National Institute of Family & Life Advocates (NIFLA) v. Becerra, holds that compelled speech is in most instances “content-based” regulation requiring heightened judicial scrutiny.
Using examples ranging from professional malpractice to compulsory tax returns, this Article argues that the doctrinal rule of NIFLA is demonstrably incorrect. It suggests that the doctrinal category of “compelled speech” may itself be confused insofar as it imagines that all legal obligations to communicate are equally …
The Immigrant Struggle For Effective Counsel: An Empirical Assessment, Jayanth K. Krishnan
The Immigrant Struggle For Effective Counsel: An Empirical Assessment, Jayanth K. Krishnan
Articles by Maurer Faculty
Recently, in Department of Homeland Security v. Thuraissigiam, the Supreme Court upheld 8 U.S.C. § 1252(e)(2), a statutory provision placing restrictions on certain noncitizens from seeking habeas review in the federal judiciary. The Court focused on the Constitution’s Suspension Clause, but it also discussed the Due Process Clause, declaring that there was no violation there either.
One question which flows from this decision is whether the federal courts will soon be precluded from hearing other types of claims brought by noncitizens. Consider ineffective assistance of counsel petitions, which in the immigration law context are rooted in the Due Process Clause. …
Gerrymandering & Justiciability: The Political Question Doctrine After Rucho V. Common Cause, G. Michael Parsons
Gerrymandering & Justiciability: The Political Question Doctrine After Rucho V. Common Cause, G. Michael Parsons
Indiana Law Journal
This Article deconstructs Rucho’s articulation and application of the political question doctrine and makes two contributions. First, the Article disentangles the political question doctrine from neighboring justiciability doctrines. The result is a set of substantive principles that should guide federal courts as they exercise a range of routine judicial functions—remedial, adjudicative, and interpretive. Rather than unrealistically attempting to draw crisp jurisdictional boundaries between exercises of “political” and “judicial” power, the political question doctrine should seek to moderate their inevitable (and frequent) clash. Standing doctrine should continue to guide courts in determining whether they have authority over a case involving a …
The Fourth Amendment At Home, Thomas P. Crocker
The Fourth Amendment At Home, Thomas P. Crocker
Indiana Law Journal
A refuge, a domain of personal privacy, and the seat of familial life, the home holds a special place in Fourth Amendment jurisprudence. Supreme Court opinions are replete with statements affirming the special status of the home. Fourth Amendment text places special emphasis on securing protections for the home in addition to persons, papers, and effects against unwarranted government intrusion. Beyond the Fourth Amendment, the home has a unique place within constitutional structure. The home receives privacy protections in addition to sheltering other constitutional values protected by the Due Process Clause and the First Amendment. For example, under the Due …
Policing The Wombs Of The World's Women: The Mexico City Policy, Samantha Lalisan
Policing The Wombs Of The World's Women: The Mexico City Policy, Samantha Lalisan
Indiana Law Journal
This Comment argues that the Policy should be repealed because it undermines
firmly held First Amendment values and would be considered unconstitutional if
applied to domestic nongovernmental organizations (DNGOs). It proceeds in four
parts. Part I describes the inception of the Policy and contextualizes it among other
antiabortion policies that resulted as a backlash to the U.S. Supreme Court’s
landmark decision in Roe v. Wade. Part II explains the Policy’s actual effect on
FNGOs, particularly focusing on organizations based in Nepal and Peru, and argues
that the Policy undermines democratic processes abroad and fails to achieve its stated
objective: reducing …
Taxonomy Of Powers And Roles Of Upper Chambers In Bicameral Legislatures, Carolyn Griffith
Taxonomy Of Powers And Roles Of Upper Chambers In Bicameral Legislatures, Carolyn Griffith
Indiana Journal of Constitutional Design
Bicameral legislatures exist around the world, with power divisions to create checks and balances on the constitutional order as a whole. In the context of constitutional design, this presents a variety of options of roles and rights given to each chamber at each step in both the legislative process and beyond. Taken as a whole, this taxonomy demonstrates there are nearly an infinite number of possibilities for separating powers between upper and lower chambers in bicameral legislatures. Often, these decisions are guided by the history of the country. For each federal legislature that places powers or votes in one chamber, …
Constitutionally Unaccountable: Privatized Immigration Detention, Danielle C. Jefferis
Constitutionally Unaccountable: Privatized Immigration Detention, Danielle C. Jefferis
Indiana Law Journal
For-profit, civil immigration detention is one of this nation’s fastest growing industries. About two-thirds of the more than 50,000 people in the civil custody of federal immigration authorities find themselves at one point or another in a private, corporate-run prison that contracts with the federal government. Conditions of confinement in many of these facilities are dismal. Detainees have suffered from untreated medical conditions and endured months, in some cases years, of detention in environments that are unsafe and, at times, violent. Some have died. Yet, the spaces are largely unregulated. This Article exposes and examines the absence of a constitutional …
"Believe Me," We Do Not Have A Foreign Emoluments Clause Violation, Scotty N. Teal
"Believe Me," We Do Not Have A Foreign Emoluments Clause Violation, Scotty N. Teal
Indiana Journal of Global Legal Studies
President Trump was sued in New York District Court for allegedly violating the Foreign Emoluments Clause. In its brief, the Citizens for Responsibility and Ethics in Washington (CREW) alleged that the president's international businesses and real estate holdings positioned him to receive money from foreign governments. These business interests, or entanglements, could "sway" or create an opportunity for negative foreign influence in violation of the Emoluments Clause. CREW states that these "entanglements between American officials and foreign powers could pose a creeping, insidious threat to the Republic." CREW argued that President Trump violated the Emoluments Clause because the clause "cover[s] …
The Recent Unpleasantness: Understanding The Cycles Of Constitutional Time, Jack M. Balkin
The Recent Unpleasantness: Understanding The Cycles Of Constitutional Time, Jack M. Balkin
Indiana Law Journal
In this Article, I will talk about what I expect is going to happen in the next five to ten years. Unlike eclipses, however, one can’t be entirely sure of the future. Politics is not astronomy, and human affairs do not operate like clockwork. Moreover, we can’t assume that everything is already foreordained: that if people simply sit on their hands and do nothing, the cycles I describe in this lecture will take care of themselves. Quite the contrary. I am telling a story about what happens in the long run, but it is not a deterministic story. The actions …
Realizing An Opportunity: Limiting The Power Of The Executive In The Iraqi Constitution, Cory Kopitzke
Realizing An Opportunity: Limiting The Power Of The Executive In The Iraqi Constitution, Cory Kopitzke
Indiana Journal of Constitutional Design
In the summer of 2015, Iraqi citizens took to the streets in protest. After going without essential services, such as electricity, in the sweltering heat and after enduring corruption that undermined Iraqi forces battling the Islamic State, these citizens called for meaningful changes in the management of the Iraqi government and for the fulfillment of “democratic aspirations” enshrined in the Iraqi Constitution. In response to these protests, Iraqi Prime Minister, Haider al-Abadi, proposed sweeping reform measures to combat the decisive divides in the current administration. These reforms called for drastic change—including the elimination of the vice-president and deputy prime minister …
Rethinking Article 422: A Retrospective On Ecuador's 2008 Constitutional Isds Recalibration, Alexander B. Avtgis
Rethinking Article 422: A Retrospective On Ecuador's 2008 Constitutional Isds Recalibration, Alexander B. Avtgis
Indiana Journal of Constitutional Design
Is Ecuador’s adoption of Article 422 in the 2008 Constitution properly viewed as a “re-statification”1 of Investor State Dispute Settlement (ISDS)? And, since its implementation, has the constitutional article been effective in institutionally insulating Ecuador from the jurisdictional reach of international ISDS? This paper answers both questions in the negative—but qualifies such an outlook by balancing the drawbacks of Article 422 against its successes. Article 422’s provisions, strident in its attempt to create an alternative development vision, did not achieve all that the Constitution’s drafters had hoped. Nevertheless, in its limited effect of detaching Ecuador from certain ISDS fora, it …
Pathways To Leadership: Four Women's Journeys To The Peace Negotiation Table In The Fight For Democracy In Burma, Brittany Shelmon
Pathways To Leadership: Four Women's Journeys To The Peace Negotiation Table In The Fight For Democracy In Burma, Brittany Shelmon
Indiana Journal of Constitutional Design
No abstract provided.
The Voice Of The People: Public Participation In The African Continent, Rafael Macia
The Voice Of The People: Public Participation In The African Continent, Rafael Macia
Indiana Journal of Constitutional Design
Public participation is becoming a more common characteristic of constitutional drafting processes around the world, and Africa has not been an exception in this regard. This paper seeks to survey several of the public participation processes undertaken in a number of African nations, in order to examine the methods followed and the effects produced by such processes. For that purpose, I have analyzed the constitutional drafting efforts in South Africa, Uganda, Eritrea, Zimbabwe, Rwanda, Kenya, and Egypt. These processes all show different circumstances and approaches, with variations in terms of their top-down or bottom-up nature, and, more importantly, in terms …
Autism Charter Schools: Legally Vulnerable Or Viable?, Janet R. Decker, Keshia Seitz, Bruce Kulwicki
Autism Charter Schools: Legally Vulnerable Or Viable?, Janet R. Decker, Keshia Seitz, Bruce Kulwicki
Indiana Journal of Law and Social Equality
Perhaps due to the dramatic increase in children diagnosed with autism, a new type of charter school has emerged that is designed to specifically serve students with autism. If these autism charter schools illegally segregate students with autism from typically developing peers, they are vulnerable to legal challenges. In this Article, we identified many constitutional and statutory violations that could exist at autism charter schools; however, our review of the litigation found that autism charter schools have not been challenged for these legal violations. Instead, we found only one charter school case alleging segregation based on ability level and eight …
Constitutional Possibilities, Lawrence B. Solum
Constitutional Possibilities, Lawrence B. Solum
Indiana Law Journal
No abstract provided.
Lost Constitutional Moorings: Recovering The War Power, Louis Fisher
Lost Constitutional Moorings: Recovering The War Power, Louis Fisher
Indiana Law Journal
For the past half century, Presidents have claimed constitutional authority to take the country from a state of peace to a state of war against another nation. That was precisely the power that the Framers denied to the President and vested exclusively in Congress. That allocation of power was understood by all three branches until President Harry Truman went to war against North Korea in 1950. He never came to Congress for authority before he acted or at any time thereafter. Similar false claims of authority have been made by Presidents since that time. These constitutional violations have been assisted …
The Treaty Establishing A Constitution For Europe And The Democratic Legitimacy Of The European Union, Elisabeth Zoller
The Treaty Establishing A Constitution For Europe And The Democratic Legitimacy Of The European Union, Elisabeth Zoller
Indiana Journal of Global Legal Studies
No abstract provided.
Architexture, Akhil Reed Amar
Architexture, Akhil Reed Amar
Indiana Law Journal
Addison C. Harris Lecture, March 20, 2002
Are We Buyers Or Hosts? A Memetic Approach To The First Amendment, Jeffrey E. Stake
Are We Buyers Or Hosts? A Memetic Approach To The First Amendment, Jeffrey E. Stake
Articles by Maurer Faculty
The First Amendment is often analyzed using the metaphor of the marketplace of ideas. Making use of memetic analysis, this article suggests that ideas should not be treated as inert products that we choose but as living things that sometimes exert some influence over their environment. Some of the ideas are more adept at surviving than others, and the ones that survive will not necessarily be good for humans. To account for the ability of some memes to replicate dangerously, the First Amendment should be read to allow governments to punish a speaker who advocates or threatens physical injury (other …
Ronald Dworkin's The Moral Reading Of The Constitution: A Critique, Raoul Berger
Ronald Dworkin's The Moral Reading Of The Constitution: A Critique, Raoul Berger
Indiana Law Journal
No abstract provided.
The Uniform Commercial Code Meets The Seventh Amendment: The Demise Of Jury Trials Under Article 5?, Margaret L. Moses
The Uniform Commercial Code Meets The Seventh Amendment: The Demise Of Jury Trials Under Article 5?, Margaret L. Moses
Indiana Law Journal
No abstract provided.
Jack Rakove's Rendition Of Original Meaning, Raoul Berger
Jack Rakove's Rendition Of Original Meaning, Raoul Berger
Indiana Law Journal
No abstract provided.
The Rhetorical Constitution Of "Civil Society" At The Founding: One Lawyer's Anxious Vision, Stephen A. Conrad
The Rhetorical Constitution Of "Civil Society" At The Founding: One Lawyer's Anxious Vision, Stephen A. Conrad
Indiana Law Journal
Symposium: Law and Civil Society