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Articles 1 - 30 of 101
Full-Text Articles in Law
Outcome Sensitivity And The Constitutional Law Of Criminal Procedure, Lee Kovarsky
Outcome Sensitivity And The Constitutional Law Of Criminal Procedure, Lee Kovarsky
Indiana Law Journal
Iconic criminal procedure doctrines that perform the same function go by different names. When constitutionally disfavored conduct taints a criminal proceeding, courts must determine how much the taint affected an outcome—and whether the damage requires judicial relief. These doctrinal constructs calibrate judicial responses to, among other things, deficient defense lawyering (prejudice), wrongful State suppression (materiality), unlawful policing (attenuation), and an assortment of trial-court mistakes (harmless error). I refer to these constructs, which tightly orbit the constitutional law of criminal procedure, as rules of “outcome sensitivity.” Formal differences in sensitivity rules remain enduring puzzles subject to only the most superficial inspection. …
Escaping Circularity: The Fourth Amendment And Property Law, João Marinotti
Escaping Circularity: The Fourth Amendment And Property Law, João Marinotti
Articles by Maurer Faculty
The Supreme Court’s “reasonable expectation of privacy” test under the Fourth Amendment has often been criticized as circular, and hence subjective and unpredictable. The Court is presumed to base its decisions on society’s expectations of privacy, while society’s expectations of privacy are themselves presumed to be based on the Court’s judgements. As a solution to this problem, property law has been repeatedly propounded as an allegedly independent, autonomous area of law from which the Supreme Court can glean reasonable expectations of privacy without falling back into tautological reasoning.
Such an approach presupposes that property law is not itself circular. If …
Rétrospectives Et Perspectives Sur La Place Du Droit Comparé Dans La Jurisprudence Du Conseil Constitutionnel, Elisabeth Zoller
Rétrospectives Et Perspectives Sur La Place Du Droit Comparé Dans La Jurisprudence Du Conseil Constitutionnel, Elisabeth Zoller
Articles by Maurer Faculty
No abstract provided.
Equality, Animus, And Expressive And Religious Freedom Under The American Constitution: Masterpiece Cakeshop And Beyond, Daniel O. Conkle
Equality, Animus, And Expressive And Religious Freedom Under The American Constitution: Masterpiece Cakeshop And Beyond, Daniel O. Conkle
Books & Book Chapters by Maurer Faculty
Professor Conkle's contribution to this volume, pre-print attached, is the chapter "Equality, Animus, and Expressive and Religious Freedom Under the American Constitution: Masterpiece Cakeshop and Beyond."
CHAPTER ABSTRACT: Does the First Amendment protect religious wedding vendors from anti-discrimination laws that require them to provide goods or services for same-sex weddings? The fundamental question is whether equality or religious freedom should prevail in this setting, but the complexities of American free speech and free exercise law—exacerbated by the Supreme Court’s decision in Masterpiece Cakeshop—have obscured the debate with dubious distinctions and highly contentious rationales and arguments. In this Essay, I present …
Why A Federal Wealth Tax Is Constitutional, Ari Glogower, David Gamage, Kitty Richards
Why A Federal Wealth Tax Is Constitutional, Ari Glogower, David Gamage, Kitty Richards
Articles by Maurer Faculty
The 2020 Democratic presidential primaries brought national attention to a new direction for the tax system: a federal wealth tax for the wealthiest taxpayers. During their campaigns, Senators Elizabeth Warren (D-MA) and Bernie Sanders (I-VT) both introduced proposals to tax the wealth of multimillionaires and billionaires, and to use the revenue for public investments, including in health care and education. These reforms generated broad public support—even among many Republicans—and broadened the conversation over the future of progressive tax reform.
A well-designed, high-end wealth tax can level the playing field in an unequal society and promote shared economic prosperity.
Critics have …
The Post-Truth First Amendment, Sarah Haan
The Post-Truth First Amendment, Sarah Haan
Indiana Law Journal
Post-truthism is widely viewed as a political problem. This Article explores posttruthism as a constitutional law problem, and argues that, because post-truthism offers a normative framework for regulating information, we should take it seriously as a basis for law.
In its exploration of the influence of post-truth ideas on law, the Article focuses on the compelled speech doctrine. When the State mandates disclosure, it pits the interests of unwilling speakers against the interests of listeners. In the twenty-first century, speakers who are targeted by mandatory disclosure laws are often organizational actors with informational advantages, such as corporations. Listeners who stand …
Sites Of Storytelling: Supreme Court Confirmation Hearings, Patrick Barry
Sites Of Storytelling: Supreme Court Confirmation Hearings, Patrick Barry
Indiana Law Journal
Supreme Court confirmation hearings have an interesting biographical feature: before nominees even say a word, many words are said about them. This feature—which has been on prominent display in the confirmation hearings of Judge Brett Kavanaugh—is a product of how each senator on the confirmation committee is allowed to make an opening statement. Some of these statements are, as Robert Bork remembers from his own confirmation hearing, “lavish in their praise,” some are “lavish in their denunciations,” and some are “lavish in their equivocations.” The result is a disorienting kind of biography by committee, one which produces not one all-encompassing …
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 …
The Global Person: Pig-Human Embryos, Personhood, And Precision Medicine, Yvonne Cripps
The Global Person: Pig-Human Embryos, Personhood, And Precision Medicine, Yvonne Cripps
Indiana Journal of Global Legal Studies
Chimeras, in the form of pig-human embryos engineered by CRISPR-Cas9 and other biotechnologies, have been created as potential sources of organs for transplantation. Against that background, and in an era of "precision medicine," this Article examines the concept of the global genetically modified person and asks whether humanness and personhood are being eroded, or finding new boundaries in intellectual property and constitutional law.
Trump, The Court, And Constitutional Law, Erwin Chemerinsky
Trump, The Court, And Constitutional Law, Erwin Chemerinsky
Indiana Law Journal
In this Essay, I want to offer initial thoughts on what the Trump presidency is likely to mean for constitutional law. First, I want to focus on the lost opportunity: what might have happened had Hillary Clinton replaced Scalia and filled other vacancies on the Court. Second, I want to focus on the reality of what we are likely to see as a result of Neil Gorsuch replacing Antonin Scalia and of other possible vacancies being filled by President Trump. Finally, I want to discuss how progressives should react to this and to the foreseeable future of constitutional law. These, …
Trump As Constitutional Failure, Jamal Greene
Trump As Constitutional Failure, Jamal Greene
Indiana Law Journal
As Part I explains, the American constitutional system assumes a certain sort of democratic culture. That assumption is encapsulated in Chief Justice John Marshall’s dictum, in M’Culloch v. Maryland, that the Constitution is “intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” The U.S. Constitution indeed lacks “the prolixity of a legal code,” but subsequent history confirms that its relative sparseness is not, as Marshall maintained, because it is “a constitution we are expounding.” The U.S. Constitution is among the world’s least prolix and most difficult to amend. These attributes …
The Constitutionality Of A National Wealth Tax, Dawn Johnsen, Walter Dellinger
The Constitutionality Of A National Wealth Tax, Dawn Johnsen, Walter Dellinger
Indiana Law Journal
The United States needs innovative approaches to help rebuild foundational, shared understandings of American democracy, the American Dream, and opportunity and fairness. Tax policy provides one central context in which collective judgments about fundamental values help form national identity. We believe that a national wealth tax (that is, a tax on individuals’ net worth) should be among the policy options under consideration to support vital infrastructure, social service, and other governmental functions. Although not a new concept, a wealth tax may be an idea whose time has come, as inequality soars toward record highs.
Our aim in this Essay is …
Is The Full Faith And Credit Clause Still "Irrelevant" To Same-Sex Marriage?: Toward A Reconsideration Of The Conventional Wisdom, Steve Sanders
Is The Full Faith And Credit Clause Still "Irrelevant" To Same-Sex Marriage?: Toward A Reconsideration Of The Conventional Wisdom, Steve Sanders
Indiana Law Journal
Essays on the Implications of Windsor and Perry
Evolving Values, Animus, And Same-Sex Marriage, Daniel O. Conkle
Evolving Values, Animus, And Same-Sex Marriage, Daniel O. Conkle
Indiana Law Journal
In this Essay, I contend that a Fourteenth Amendment right to same-sex marriage will emerge, and properly so, when the Supreme Court determines that justice so requires and when, in the words of Professor Alexander Bickel, the Court’s recognition of this right will “in a rather immediate foreseeable future . . . gain general assent.” I suggest that we are fast approaching that juncture, and I go on to analyze three possible justifications for such a ruling: first, substantive due process; second, heightened scrutiny equal protection; and third, rational basis equal protection coupled with a finding of illicit “animus.” I …
The Constitutional Right To (Keep Your) Same-Sex Marriage, Steve Sanders
The Constitutional Right To (Keep Your) Same-Sex Marriage, Steve Sanders
Articles by Maurer Faculty
Same-sex marriage is legal in six states, and nearly 50,000 same-sex couples have already married. Yet 43 states have adopted statutes or constitutional amendments banning same-sex marriage (typically called mini defense of marriage acts, or “mini-DOMAs”), and the vast majority of these measures not only forbid the creation of same-sex marriages, they also purport to void or deny recognition to the perfectly valid same-sex marriages of couples who migrate from states where such marriages are legal. These non-recognition laws effectively transform the marital parties into complete legal strangers to each other, with none of the customary rights or incidents of …
Religious Truth, Pluralism, And Secularization: The Shaking Foundations Of American Religious Liberty, Daniel O. Conkle
Religious Truth, Pluralism, And Secularization: The Shaking Foundations Of American Religious Liberty, Daniel O. Conkle
Articles by Maurer Faculty
In this Essay, I recount John Locke’s 1689 Letter Concerning Toleration and explain how religious liberty continues to rest on Lockean and related justifications. These various justifications depend in part on religious-moral reasoning (both Christian and non-Christian) and in part on political-pragmatic considerations. I then discuss recent and ongoing developments in the American religious landscape, including a radical increase in religious diversity, the modernization of traditional faiths, the individualization or "spiritualization" of religion, and the increasing secularization of individual belief structures. I suggest that these developments, over time, may seriously threaten the underlying religious-moral and political-pragmatic foundations of religious liberty …
Our Schizoid Approach To The United States Constitution: Competing Narratives Of Constitutional Dynamism And Stasis, Sanford Levinson
Our Schizoid Approach To The United States Constitution: Competing Narratives Of Constitutional Dynamism And Stasis, Sanford Levinson
Indiana Law Journal
Jerome Hall Lecture at the Indiana University Maurer School of Law - Bloomington on October 3, 2008
Designing Federalism In Burma, David C. Williams, Lian H. Sakhong
Designing Federalism In Burma, David C. Williams, Lian H. Sakhong
Books & Book Chapters by Maurer Faculty
This volume is designed to serve as a concise introduction to certain constitutional ideas that may be relevant to Burma. It contains three documents: one essay by Lian Sakhong, and two lectures that I delivered to the SCSC, over several days in November 2003 and August 2004. All three contain common themes. First, sometimes ideas can show us a way through problems that we had thought were impenetrable. Second, Burma’s problems have grown in part from some misunderstandings of certain ideas. In particular, many in Burma have imagined that governance can really occur only at the center: people look to …
Globalization And The United States Constitution: How Much Can It Accommodate, James M. Boyers
Globalization And The United States Constitution: How Much Can It Accommodate, James M. Boyers
Indiana Journal of Global Legal Studies
No abstract provided.
Letting Statutory Tails Wag Constitutional Dogs: Have The Bivens Dissenters Prevailed?, George D. Brown
Letting Statutory Tails Wag Constitutional Dogs: Have The Bivens Dissenters Prevailed?, George D. Brown
Indiana Law Journal
No abstract provided.
Neutral Principles And Some First Amendment Problems, Robert H. Bork
Neutral Principles And Some First Amendment Problems, Robert H. Bork
Indiana Law Journal
The text of this article was delivered in the Spring of 1971 by Professor Bork at the Indiana University School of Law as part of the Addison C. Harriss lecture series.
The Development Of Constitutional Guarantees Of Liberty, By Roscoe Pound, Howard Jay Graham
The Development Of Constitutional Guarantees Of Liberty, By Roscoe Pound, Howard Jay Graham
Indiana Law Journal
No abstract provided.
The President: Office And Powers, By Edward S. Corwin, David Fellman
The President: Office And Powers, By Edward S. Corwin, David Fellman
Indiana Law Journal
No abstract provided.
Vagaries And Varieties In Constitutional Interpretation, By Thomas Reed Powell, Albert S. Abel
Vagaries And Varieties In Constitutional Interpretation, By Thomas Reed Powell, Albert S. Abel
Indiana Law Journal
No abstract provided.
Cases And Materials On Constitutional Law, By John P. Fran, Thomas Reed Powell
Cases And Materials On Constitutional Law, By John P. Fran, Thomas Reed Powell
Indiana Law Journal
No abstract provided.
The Constitution And Socio-Economic Change, By Henry Rottschaefer, Ben W. Palmer
The Constitution And Socio-Economic Change, By Henry Rottschaefer, Ben W. Palmer
Indiana Law Journal
No abstract provided.
Application Of The Self-Incrimination Clause To The Compulsory Production Of Books And Papers Required To Be Kept By Statute
Indiana Law Journal
Constitutional Law Note
Canon Of Restrictive Interpretation Repudiated
Canon Of Restrictive Interpretation Repudiated
Indiana Law Journal
Recent Cases: Constitutional Law
Civil Servants And The Right To Engage In Political Activity
Civil Servants And The Right To Engage In Political Activity
Indiana Law Journal
Notes and Comments: Constitutional Law
Indiana Gross Income Tax And The Commerce Clause
Indiana Gross Income Tax And The Commerce Clause
Indiana Law Journal
Notes and Comments: Constitutional Law