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Articles 1 - 18 of 18
Full-Text Articles in Judges
Abortion And Affirmative Action: The Fragility Of Supreme Court Political Decision-Making, William E. Nelson
Abortion And Affirmative Action: The Fragility Of Supreme Court Political Decision-Making, William E. Nelson
Indiana Journal of Law and Social Equality
This Article shows, on the basis of new evidence, that the canonical case of Marbury v. Madison has been grossly misinterpreted and that as a result of the misinterpretation we cannot understand what is wrong with contemporary cases such as Dobbs v. Jackson Women’s Health Organization and Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.
The Article will proceed as follows. Because Marbury cannot be properly understood without understanding the eighteenth-century background against which it was decided, Part I will examine legal practices in colonial and post-Revolutionary America, focusing on cases in which judicial review emerged …
Just-Right Government: Interstate Compacts And Multistate Governance In An Era Of Political Polarization, Policy Paralysis, And Bad-Faith Partisanship, Jon Michaels, Emme M. Tyler
Just-Right Government: Interstate Compacts And Multistate Governance In An Era Of Political Polarization, Policy Paralysis, And Bad-Faith Partisanship, Jon Michaels, Emme M. Tyler
Indiana Law Journal
Those committed to addressing the political, economic, and moral crises of the day— voting rights, racial justice, reproductive autonomy, gaping inequality, LGBTQ rights, and public health and safety—don’t know where to turn. Federal legislative and regulatory pathways are choked off by senators quick to filibuster and by judges eager to strike down agency rules and orders. State pathways, in turn, are compromised by limited capacity, collective action problems, externalities, scant economies of scale, and—in many jurisdictions—a toxic political culture hostile to even the most anodyne government interventions. Recognizing the limited options available on a binary (that is, federal or state) …
A Newfound Power: How The Ohio Supreme Court Should Approach The Next Partisan Gerrymander, Bradley Davis
A Newfound Power: How The Ohio Supreme Court Should Approach The Next Partisan Gerrymander, Bradley Davis
Indiana Law Journal
Partisan gerrymandering is a practice as old as the nation itself and a problem both state and federal courts continue to struggle with. In 2015, the people of Ohio overwhelmingly voted to amend the state constitution to prevent overly partisan outcomes in state legislative redistricting. Following the 2021 redistricting cycle, the Ohio Supreme Court narrowly struck down several redistricting proposals in what devolved into a protracted fight with legislators and executive officials. This Note carefully lays out the development of redistricting jurisprudence, Ohio’s relevant constitutional provisions, and various state and federal judicial approaches to alleged gerrymanders. Using a combination of …
Situating Structural Challenges To Agency Authority Within The Framework Of The Finality Principle, Harold J. Krent
Situating Structural Challenges To Agency Authority Within The Framework Of The Finality Principle, Harold J. Krent
Indiana Law Journal
No abstract provided.
Aggregate Stare Decisis, Kiel Brennan-Marquez
Aggregate Stare Decisis, Kiel Brennan-Marquez
Indiana Law Journal
The fate of stare decisis hangs in the wind. Different factions of the Supreme Court are now engaged in open debate—echoing decades of scholarship—about the doctrine’s role in our constitutional system. Broadly speaking, two camps have emerged. The first embraces the orthodox view that stare decisis should reflect “neutral principles” that run orthogonal to a case’s merits; otherwise, it will be incapable of keeping the law stable over time. The second argues that insulating stare decisis from the underlying merits has always been a conceptual mistake. Instead, the doctrine should focus more explicitly on the merits—by diagnosing the magnitude of …
Judicial Independence And The Budget: A Taxonomy Of Judicial Budgeting Mechanisms, Alexander Rosselli
Judicial Independence And The Budget: A Taxonomy Of Judicial Budgeting Mechanisms, Alexander Rosselli
Indiana Journal of Constitutional Design
This Paper addresses three aspects of judicial budgeting. First, it will identify the four broad families of constitutional provisions that consider the judicial budget. While the majority of procedures and requirements that govern judicial budgeting are found in statues, many nations’ constitutions explicitly address judicial salaries. Other constitutions only broadly address judicial budgeting. Second, we will analyze different approaches to judicial councils. Third, this Paper will address several different approaches to the judicial budgeting process. This includes how the judiciary’s budget is proposed, as well as how it is allocated and managed. Finally, this Paper will touch upon the tension …
The "Lower" Federal Courts: Judging In A Time Of Trump, Nancy Gertner
The "Lower" Federal Courts: Judging In A Time Of Trump, Nancy Gertner
Indiana Law Journal
To be sure, I offer only preliminary thoughts in this Essay. The Trump presidency is young. There are multiple challenges to multiple executive decisions and orders in courts across the country. A full treatment would take the reader into the robust literature on judicial decision making about context and pragmatism, with historical comparisons to other epochs where the challenges were comparable, even to empirical analyses of judging at different periods of time. I start with judging in “ordinary” times, the period during which I served. I then describe the challenges of judging in a time of Trump, and I conclude …
The Roberts Court And Freedom Of Speech, Erwin Chemerinsky
The Roberts Court And Freedom Of Speech, Erwin Chemerinsky
Federal Communications Law Journal
This is an edited version of a speech delivered on December 16, 2010 in Washington, D.C., as part of the Federal Communications Bar Association's Distinguished Speaker Series.
This speech was given by Dean Erwin Chemerinsky in December 2010 as part of the FCBA's Distinguished Speaker Series. In the speech, Dean Chemerinsky offers his perspectives on and analysis of the Supreme Court's position on freedom of speech in recent years. He highlights important recent freedom of speech decisions made by the Roberts Court, and gives some projections as to where the court is heading in the years to come, given its …
From One [Expletive] Policy To The Next: The Fcc's Regulation Of "Fleeting Expletives" And The Supreme Court's Response, Brandon J. Almas
From One [Expletive] Policy To The Next: The Fcc's Regulation Of "Fleeting Expletives" And The Supreme Court's Response, Brandon J. Almas
Federal Communications Law Journal
After the broadcast of the 2003 Golden Globe Awards, during which the lead singer from U2 uttered an expletive on national television, the FCC revisited its prior policy on the use of expletives on the airwaves and declared, for the first time, that "fleeting expletives" are offensive according to community standards and are therefore finable. In a lawsuit filed in the Second Circuit Court of Appeals, Fox Television Stations, Inc. along with a number of other broadcasters argued that the FCC's new policy was arbitrary and capricious under the Administrative Procedure Act and unconstitutional under the First Amendment. The Second …
International Rule Of Law And Constitutional Justice In International Investment Law And Arbitration, Ernst-Ulrich Petersmann
International Rule Of Law And Constitutional Justice In International Investment Law And Arbitration, Ernst-Ulrich Petersmann
Indiana Journal of Global Legal Studies
Judicial administration of justice through reasoned interpretation, application and clarification of legal principles and rules is among the oldest paradigms of constitutional justice. The principles of procedural justice underlying investor-state arbitration remain controversial, especially if confidentiality and party autonomy governing commercial arbitration risk neglecting adversely affected third parties and public interests. There are also concerns that rule-following and formal equality of foreign investors and home states may not ensure substantive justice in the settlement of investment disputes unless arbitrators and courts take more seriously their customary law obligation of settling disputes in conformity with human rights obligations of governments and …
Limiting The Federal Pardon Power, Kristen H. Fowler
Limiting The Federal Pardon Power, Kristen H. Fowler
Indiana Law Journal
No abstract provided.
The Burger Court, The Commerce Clause, And The Problem Of Differential Treatment, Earl M. Maltz
The Burger Court, The Commerce Clause, And The Problem Of Differential Treatment, Earl M. Maltz
Indiana Law Journal
No abstract provided.
Justice Story's Doctrine Of Judicial Supremacy And The Uncertain Search For A Neutral Principle In The Charles River Bridge Case, C. Lee Mangas
Justice Story's Doctrine Of Judicial Supremacy And The Uncertain Search For A Neutral Principle In The Charles River Bridge Case, C. Lee Mangas
Indiana Law Journal
No abstract provided.
Justice William 0. Douglas: The Constitution In A Free Society, William M. Beaney
Justice William 0. Douglas: The Constitution In A Free Society, William M. Beaney
Indiana Law Journal
No abstract provided.
Judicial Discretion And The Freedom Of Information Act: Disclosure Denied: Consumers Union V. Veterans Administration, Judith A. Mitnick
Judicial Discretion And The Freedom Of Information Act: Disclosure Denied: Consumers Union V. Veterans Administration, Judith A. Mitnick
Indiana Law Journal
No abstract provided.
The Commerce Power: An Instrument Of Federalism, Albert S. Abel
The Commerce Power: An Instrument Of Federalism, Albert S. Abel
Indiana Law Journal
No abstract provided.
Constitutional Law
Indiana Law Journal
Recent Case Notes: Taxation of Judges' Salaries
Constitutional Law-Court Of Claims-Legislative Courts-Reducing Judge's Salary
Constitutional Law-Court Of Claims-Legislative Courts-Reducing Judge's Salary
Indiana Law Journal
No abstract provided.