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Articles 1 - 23 of 23
Full-Text Articles in Law and Politics
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) …
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 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 Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias
The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias
Indiana Law Journal
As Parts I and II of this Essay elaborate, the examination yields three observations of relevance to constitutional law more generally: First, judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. Judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Second, while economic inequality has become a cause célèbre only in the last few years, much of the constitutional doctrine that has contributed to its flourishing is longstanding. Moreover, for several decades, even the Court’s more liberal …
Prochoicelife: Asking Who Protects Life And How -- And Why It Matters In Law And Politics, Reva Siegel
Prochoicelife: Asking Who Protects Life And How -- And Why It Matters In Law And Politics, Reva Siegel
Indiana Law Journal
In this Essay I reason from a “prochoicelife” perspective that asks whether government protects new life by means that respect women’s reproductive decisions. I develop a framework that allows us to compare the policies for protecting new life that governments choose and the values they demonstrate. This Essay’s critical framework connects policies on sexual education, contraception, abortion, health care, income assistance, and the accommodation of pregnancy and parenting in the workplace. It shows that some jurisdictions protect new life selectively, favoring policies for protecting new life that restrict women’s reproductive decisions over policies that respect women’s reproductive decisions.
This Essay …
Political Norms, Constitutional Conventions, And President Donald Trump, Neil S. Siegel
Political Norms, Constitutional Conventions, And President Donald Trump, Neil S. Siegel
Indiana Law Journal
I will argue that what is most troubling about the conduct of President Trump during and since the 2016 U.S. presidential campaign is not any potential violations of the U.S. Constitution or federal law. There likely have been some such violations, and there may be more. But what is most troubling about President Trump is his disregard of political norms that had previously constrained presidential candidates and Presidents, and his flouting of nonlegal but obligatory “constitutional conventions” that had previously guided and disciplined occupants of the White House. These norms and conventions, although not “in” the Constitution, play a pivotal …
Equal Citizenship And The Individual Right To Vote, Jospeh Fishkin
Equal Citizenship And The Individual Right To Vote, Jospeh Fishkin
Indiana Law Journal
An emerging consensus among election law scholars urges courts to break out of “the stagnant discourse of individual rights and competing state interests” and instead adopt a jurisprudence of “structural” democratic values that sidelines individual rights. This structuralist approach won out in the great “rightsstructure” debate in election law, and came to dominate the field, during a period in which the main controversies—vote dilution, gerrymandering, ballot access, campaign finance—were all ones in which the structuralist move was illuminating. However, structuralism is now causing both scholars and courts to evaluate the new wave of vote denial controversies, over such issues as …
Re-Solidifying Racial Bloc Voting: Empirics And Legal Doctrine In The Melting Pot, D. James Greiner
Re-Solidifying Racial Bloc Voting: Empirics And Legal Doctrine In The Melting Pot, D. James Greiner
Indiana Law Journal
Racial bloc voting is the central concept in judicial regulation of redistricting. For the past several decades, the definition and proof of this concept have depended on two premises: that polities can be conceptualized in biracial terms and that nearly perfect information on voting patterns can be inexpensively obtained from simple statistical methods. In fact, however, neither premise has been true for some time, as the nation has become multiracial and allegations have increased that Caucasians vote less monolithically than before, with both assertions imposing severe stress on the simple statistical methods previously used to assess voting patterns. In this …
Taking Politics Religiously: Can Free Exercise And Establishment Clause Cases Illuminate The Law Of Democracy?, Pamela S. Karlan
Taking Politics Religiously: Can Free Exercise And Establishment Clause Cases Illuminate The Law Of Democracy?, Pamela S. Karlan
Indiana Law Journal
Harris Lecture delivered at Indiana University School of Law-Bloomington on February 16, 2007.
Regulating The Commander In Chief: Some Theories, Saikrishna Prakash
Regulating The Commander In Chief: Some Theories, Saikrishna Prakash
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.
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 Executive And The Avoidance Canon, H. Jefferson Powell
The Executive And The Avoidance Canon, H. Jefferson Powell
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.
Can The President Be Torturer In Chief?., Harold Hongju Koh
Can The President Be Torturer In Chief?., Harold Hongju Koh
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.
Loaded Dice And Other Problems: A Further Reflection On The Statutory Commander In Chief, Christopher H. Schroeder
Loaded Dice And Other Problems: A Further Reflection On The Statutory Commander In Chief, Christopher H. Schroeder
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 National Security Agency's Domestic Spying Program: Framing The Debate (Including Relevant Documents), David Cole, Martin S. Lederman
The National Security Agency's Domestic Spying Program: Framing The Debate (Including Relevant Documents), David Cole, Martin S. Lederman
Indiana Law Journal
No abstract provided.
Foreword To: War, Terrorism And Torture: Limits On Presidential Power In The 21st Century Symposium, Dawn E. Johnsen
Foreword To: War, Terrorism And Torture: Limits On Presidential Power In The 21st Century Symposium, Dawn E. Johnsen
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.
Taking The Initiative: Political Parties, Primary Elections, And The Constitutional Guarantee Of Republican Governance, Gavin M. Rose
Taking The Initiative: Political Parties, Primary Elections, And The Constitutional Guarantee Of Republican Governance, Gavin M. Rose
Indiana Law Journal
No abstract provided.
Republican Constitutional Skepticism And Congressional Reform, Thomas Molnar Fisher
Republican Constitutional Skepticism And Congressional Reform, Thomas Molnar Fisher
Indiana Law Journal
No abstract provided.
Fencing Out Politically Unpopular Groups From The Normal Political Processes: The Equal Protection Concerns Of Colorado Amendment Two, Craig Cassin Burke
Fencing Out Politically Unpopular Groups From The Normal Political Processes: The Equal Protection Concerns Of Colorado Amendment Two, Craig Cassin Burke
Indiana Law Journal
No abstract provided.
A Political-Choice Approach To Limiting Prejudicial Evidence, J. Alexander Tanford
A Political-Choice Approach To Limiting Prejudicial Evidence, J. Alexander Tanford
Indiana Law Journal
No abstract provided.
Congress, The Constitution And Crosskey, James A. Durham
Congress, The Constitution And Crosskey, James A. Durham
Indiana Law Journal
No abstract provided.
Political Affiliation As Qualification For Office
Political Affiliation As Qualification For Office
Indiana Law Journal
Constitutional Law Note
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