Law Commons^™

The Right To Inequality: Conservative Politics And Precedent Collide, Jonathan Feingold

Faculty Scholarship

The “end of affirmative action” is the beginning of this story. In Students for Fair Admissions v. Harvard (SFFA), the Supreme Court struck a near fatal blow to race-consciousness. Many institutions have since pivoted to “race neutral alternatives.” This is a natural turn. But one that faces immediate headwinds.

The same entities that demanded Harvard pursue racial diversity through colorblind means have sued public high schools for doing just that. These litigants assert a “right to inequality”—a theory that would pit the equal protection clause against equality itself. Even if normatively jarring, a right to inequality might seem a …

Scla 521 Ai In Society, Bert Chapman

Libraries Faculty and Staff Presentations

Provides access to information resources on societal impacts of artificial intelligence from multiple libraries databases covering multiple disciplines including government information resources.

Indiana Law Supporting Newly Established Indiana Innocence Project, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

Law students from the Indiana University Maurer School of Law will have the opportunity to help exonerate wrongfully convicted Hoosiers through the newly established Indiana Innocence Project, which officially launched Saturday (Aug. 17).

Established in association with the national Innocence Project—which has helped free more than 240 wrongfully convicted prisoners since 1992—the Indiana Innocence Project (INIP) has been made possible through the support of the Herbert Simon Family Foundation, along with the Law School and IU’s Department of Criminal Justice.

The Indiana Innocence Project will screen and investigate cases with meritorious innocence claims, secure DNA testing when biological evidence …

The Limits Of Immigrant Resilience, Huyen Pham, Natalie C. Cook, Ernesto Amaral, Raymond Robertson, Suojin Wang

Faculty Scholarship

Economists have identified important adaptations that immigrant workers have made to weather economic crises. During times of economic contraction, immigrant workers have moved across industries or geographical locations, downshifted to part-time work, and accepted lower wages to stay employed. Evidence from the Great Recession (2007–2009) shows the benefits of that economic resilience: immigrant workers were more likely than native-born workers to remain continuously employed, to have shorter periods of unemployment when they lost their jobs, and to regain jobs more quickly in the recovery period. Of course, these adaptations had significant personal costs for immigrant workers and their families, but …

Law School News: Mandell-Boisclair Justice Camp Prepares Young Scholars To Become Future Lawyers, Social Justice Advocates 7-26-2024, Jordan J. Phelan, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Amicus Brief Of Federal Courts Scholars In Alabama V. California, Supreme Court Of The United States, No. 158, Original, Arthur D. Hellman, F. Andrew Hessick, Derek T. Muller, Robert J. Pushaw

Amici Briefs

This amicus brief was submitted to the United States Supreme Court in support of the motion by Alabama and other states to file a bill of complaint against California and other states under the Court’s original jurisdiction. The brief addresses one issue alone: it argues that under Article III of the Constitution and section 1251 of the Judicial Code, the Court has a duty to exercise its exclusive, original jurisdiction over actions in which one state brings suit against another state. The brief takes no position on any other procedural or merits issues that may be raised by the motion …

Pov: Sisterhood For The Win, Erika George

Shorter Faculty Works

When Vice President Kamala Harris accepted President Joe Biden’s endorsement on Sunday to replace him on the Democratic ticket and to run for the party’s nomination, she emphasized her intention to “earn and win” support for her candidacy. Historically, earning widespread support has proved to be a challenge for women candidates seeking the highest political offices in a country—with a 2023 Pew study finding that women served as government heads in just 13 of the 193 member states of the United Nations, and that fewer than one-third of UN countries have ever had a woman leader.

Negotiating Police Reform, Cynthia Alkon

Faculty Scholarship

In the summer of 2020, after the murder of George Floyd, the national conversation around police reform intensified and was part of a conversation with students at Texas A&M University School of Law. Students wanted more discussion and teaching about police, police misconduct, police reform, and defunding the police. Following those discussions, I created a simulation on local level police reform that, as of this writing, I have used twice in my negotiation class. Simulations are helpful teaching tools in a variety of settings, including law schools. Simulations can be particularly useful to help students discuss difficult topics in different …

Chapter 3: Civic Education And Democracy's Flaws, Robert L. Tsai

Faculty Scholarship

Today, liberalism and democracy are beset by competitors that seek to return power to religious traditionalists or partisans masquerading as civic republicans.¹ In such an environment, can civic education do some good, and even help bridge our society’s deepening divides?

Seana Shiffrin has characteristically brought deep learning and penetrating insight to the project of civic education in a modern democracy. Against a “dominant” model of citizenship in which “citizens vote and hand off power to their representatives”— which she believes encourages the people to maintain an unhealthy distance from government— she proposes a richer account of political community in …

Thusi Selected As John Hope Franklin Prize Recipient, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

The Law and Society Association will honor an Indiana University Maurer School of Law professor this week at its 2024 Annual Meeting in Denver from June 6-9.

Professor India Thusi will receive the John Hope Franklin Prize, recognizing exceptional scholarship in the field of Race, Racism and the Law.

Thusi’s winning work, “The Racialized History of Vice Policing,” was published in the UCLA Law Review in 2023.

“The article provides an enduring scholarly contribution at the intersection of policing, abolition, and legal history,” according to the LSA. “Thusi adopts an abolitionist framework and provides a much-needed analysis of vice policing …

Immigration Enforcement Creep In Immigrant & Employee Rights, Angela D. Morrison

Faculty Scholarship

As the only agency charged with enforcing the Immigration Reform and Control Act’s antidiscrimination provisions, the Immigrant and Employee Rights (“IER”) section of the Department of Justice’s Civil Rights Division plays an important role in protecting worker rights. Yet over the past decade, IER has moved from worker protection to immigration enforcement: a phenomenon this Article terms “immigration enforcement creep.”

This observation is based on ten years of data collected from IER’s settlement agreements, complaints filed, and telephone interventions. The data show that rather than protect noncitizen workers from unlawful discrimination, IER has moved its focus to enforcing immigration laws …

Decoding Dobbs: A Typology To Better Understand The Roberts Court's Jurisprudence, Katie Yoder

Honors Projects

The U.S. Supreme Court first recognized Substantive Due Process (“SDP”) in the early twentieth century. In Lochner v. New York, the Court established that there are certain unenumerated rights that are implied by the Fourteenth Amendment.Though SDP originated in a case about worker’s rights and liberties, it quickly became relevant to many cases surrounding personal intimate decisions involving health, safety, marriage, sexual activity, and reproduction.Over the past 60 years, the Court relied upon SDP to justify expanding a fundamental right to privacy, liberty, and the right to medical decision making. Specifically, the court applied these concepts to allow for freedoms …

The Submerged Administrative State, Gabriel Scheffler, Daniel E. Walters

Faculty Scholarship

The United States government is experiencing a reputation crisis: after decades of declining public trust, many Americans have lost confidence in the government’s capacity to perform its basic functions. While various explanations have been offered for this worrying trend, these existing accounts overlook a key factor: people are unfamiliar with the institutions that actually do most of the governing—administrative agencies—and they devalue what they cannot easily observe. The “submerged” nature of the administrative state is, we argue, a central reason for declining trust in government.

This Article shows that the administrative state is systematically submerged in two ways. First, administrative …

The Perennial Eclipse: Race, Immigration, And How Latinx Count In American Politics, Rachel F. Moran

Faculty Scholarship

In 2016, the U.S. Supreme Court decided Evenwel v. Abbott, a case challenging the use of total population in state legislative apportionment as a violation of the Equal Protection Clause. The plaintiffs sued Texas, alleging that the State impermissibly diluted their voting power because they lived in areas with a high proportion of voting-age citizens. When total population was used to draw district lines, the plaintiffs had to compete with more voters to get their desired electoral outcomes than was true for voters in districts with low proportions of voting-age citizens. The Court rejected the argument, finding that states enjoy …

The Anti-Innovation Supreme Court: Major Questions, Delegation, Chevron And More, Jack M. Beermann

Faculty Scholarship

The Supreme Court of the United States has generally been a very aggressive enforcer of legal limitations on governmental power. In various periods in its history, the Court has gone far beyond enforcing clearly expressed and easily ascertainable constitutional and statutory provisions and has suppressed innovation by the other branches that do not necessarily transgress widely held social norms. Novel assertions of legislative power, novel interpretations of federal statutes, statutes that are in tension with well-established common law rules and state laws adopted by only a few states are suspect simply because they are novel or rub up against tradition. …

Charge The Cockpit Or Die: An Anatomy Of Fear-Driven Political Rhetoric In American Conservatism, Daniel Hostetter

Senior Honors Theses

Subthreshold negative emotions have superseded conscious reason as the initial and strongest motivators of political behavior. Political neuroscience uses the concepts of negativity bias and terror management theory to explore why fear-driven rhetoric plays such an outsized role in determining human political actions. These mechanisms of human anthropology are explored by competing explanations from biblical and evolutionary scholars who attempt to understand their contribution to human vulnerabilities to fear. When these mechanisms are observed in fear-driven political rhetoric, three common characteristics emerge: exaggerated threat, tribal combat, and religious apocalypse, which provide a new framework for explaining how modern populist leaders …

Anti-Press Bias: A Response To Andersen Jones And West's Presuming Trustworthiness, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

Professors RonNell Andersen Jones and Sonja R. West’s Presuming Trustworthiness is a deeply depressing read. That is what makes it so good. The article is a clear-eyed, data-driven approach to assessing just how endangered the legal status of the free press is. Given the universality of the agreement that a free press is central to democracy, Andersen Jones and West’s message is vital. Presuming Trustworthiness should raise alarms.

In response, I hope this essay can serve as a bullhorn. I want to amplify what Andersen Jones and West’s research and data bear out. Not only has the Supreme Court ceased …

The Role Of A Judge In An Electoral Autocracy, Aparna Chandra

Popular Media

In a year where 64 countries are holding elections, courts around the world must engage with a range of questions around electoral integrity and dysfunction, i.e., with the judicialization of electoral processes. How should democratically inclined judges respond to attempts by incumbent autocrats at leveraging laws to hold on to power?

U.S. Government Agency Podcasts, Bert Chapman

Libraries Faculty and Staff Presentations

Presents podcasts from U.S. Government agencies which can be discovered through the U.S. Government Publishing Office's Catalog of Government Publications. Agencies whose podcasts are presented include the National Institutes of Health, U.S. Peace Corps, U.S. Department of Agriculture, Government Accountability Office (GAO), National Park Service, Department of Justice, Federal Reserve System, and U.S. Naval War College.

Mistick Speaks: A Collection Of Tribune Review Columns, 2019-2023, Joseph Sabino Mistick

Law Faculty Publications

No abstract provided.

Legislating Morality In The Gilded Age And Progressive Era: Moral Panic And The “White Slave” Case That Changed America, Nancy C. Unger

History

This article is based on the presidential address presented to the Society for Historians of the Gilded Age and Progressive Era at the meeting of the Organization of American Historians in Los Angeles in 2023. Its focus is Maury Diggs and Drew Caminetti, two white men from Sacramento, California, charged with violating the Mann Act (known as the White Slave Trafficking Act) in 1913. The Gilded Age and Progressive Era obsession with white slavery, a phenomenon that has particular resonance in today’s climate, reveals the power of moral panics. Examining the steps, and missteps, that various legal, social, and political …

Unintended Consequences Of Fetal Personhood Statutes: Examples From Tax, Trusts, And Estates, Bridget J. Crawford, Alexis C. Borders, Katherine Keating

Elisabeth Haub School of Law Faculty Publications

The laws of taxation, trusts, and estates are new fronts in the culture wars over abortion. After the Supreme Court's 2022 decision in Dobbs v. Jackson Women's Health Organization, some anti-abortion states enacted fetal personhood statutes that have the potential to unsettle and destabilize longstanding legal doctrines that otherwise create predictability and stability in the laws of taxation and succession. This Article makes three principal claims: descriptive, predictive, and normative. First, the Article explores how Dobbs opened the door for states like Georgia to treat zygotes-embryos-fetuses as “dependents” for state income tax purposes. Second, the Article identifies some of the …

Slaughtering Slaughter-House: An Assessment Of 14th Amendment Privileges Or Immunities Jurisprudence, Caleb Webb

Senior Honors Theses

In 1872, the Supreme Court decided the Slaughter-House Cases, which applied a narrow interpretation of the Privileges or Immunities Clause of the 14^th Amendment that effectually eroded the clause from the Constitution. Following Slaughter-House, the Supreme Court compensated by utilizing elastic interpretations of the Due Process Clause in its substantive due process jurisprudence to cover the rights that would have otherwise been protected by the Privileges or Immunities Clause. In more recent years, the Court has heard arguments favoring alternative interpretations of the Privileges or Immunities Clause but has yet to evaluate them thoroughly. By applying the …

Separation Of Powers By Contract: How Collective Bargaining Reshapes Presidential Power, Nicholas Handler

Faculty Scholarship

This Article demonstrates for the first time how civil servants check and restrain presidential power through collective bargaining. The executive branch is typically depicted as a top-down hierarchy. The President, as chief executive, issues directives with vast implications for federal policy. Usually, the tenured bureaucracy of civil servants below him follow these directives. Occasionally, when the President’s policies appear corrupt or ill-advised, bureaucrats may illicitly “resist” them. This presumed top-down structure shapes many influential critiques of the modern administrative state. Proponents of a strong President decry civil servants as an unelected “deep state” usurping popular will. Skeptics of presidential power …

A Denial Of Personhood: Why Hate Crime Legislation Is Necessary To Assure Proportionality In Punishment, Clare Godfryd

JCLC Online

The term “hate crime” entered the mainstream in the United States during the 1980s, when advocates began to track incidents of bias-motivated violence. Since then, hate crimes have continued to garner significant attention. Advocates and legislators have traditionally justified hate crime law under the “expressive theory,” the idea that the purpose of such laws is to condemn prejudice and express messages of tolerance and equality.

In this Comment, I offer a distinct justification for hate crime legislation. Specifically, I argue that, when a perpetrator targets a victim because of perceived immutable characteristics, the hate crime offender denies the victim’s agency …

Searching Govinfo.Gov/, Bert Chapman

Libraries Faculty and Staff Presentations

This U.S. Government Publishing Office (GPO) database provides access to information legal, legislative, and regulatory information produced on multiple subjects by the U.S. Government. Content includes congressional bills, congressional committee hearings and prints (studies), reports on legislation, the text of laws, regulations, and executive orders and multiple U.S. Government information resources covering subjects from accounting to zoology.

Four Futures Of Chevron Deference, Daniel E. Walters

Faculty Scholarship

In two upcoming cases, the Supreme Court will consider whether to overturn the Chevron doctrine, which, since 1984, has required courts to defer to reasonable agency interpretations of otherwise ambiguous statutes. In this short essay, I defend the proposition that, even on death’s door, Chevron deference is likely to be resurrected, and I offer a simple positive political theory model that helps explain why. The core insight of this model is that the prevailing approach to judicial review of agency interpretations of law is politically contingent—that is, it is likely to represent an equilibrium that efficiently maximizes the Supreme Court’s …

Narratives Of Reproductive Control In The American Eugenics Movement, Cassandra M. Provost

Honors Theses

In this paper, I will explore the eugenics movement as a pseudo-scientific political, social, and legal phenomenon which had a devastating historical impact on America’s most vulnerable women, as well as briefly discuss its residual effects on contemporary reproductive rights conversations, through the lens of literature. Using an interdisciplinary discourse and narrative analysis approach, I identify two distinct themes within the explored narratives: (1) the importance of a government’s attempt to override a person’s autonomy by destroying the person’s ability to reproduce, and (2) the impropriety of actions based on a negative attitude toward disabled or undesirable persons. In my …

Charging Abortion, Milan Markovic

Faculty Scholarship

As long as Roe v. Wade remained good law, prosecutors could largely avoid the question of abortion. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has now placed prosecutors at the forefront of the abortion wars. Some chief prosecutors in antiabortion states have pledged to not enforce antiabortion laws, whereas others are targeting even out-of-state providers. This post-Dobbs reality, wherein the ability to obtain an abortion depends not only on the politics of one’s state but also the policies of one’s local district attorney, has received minimal scrutiny from legal scholars.

Prosecutors have broad charging discretion, …

No Balancing For Anti-Constitutional Government Conduct, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals