Legal History Commons^™

Protections Against Tyranny: How Article V Should Guide Constitutional Interpretation, Mary Strong

Indiana Law Journal

This Note seeks to explain what Article V means for the methods of constitutional change outside of the traditional Article V amendment process. Specifically, I argue that Article V was meant to limit the federal government from usurping power without first attaining the consent of the people. Because the Supreme Court is part of the federal government and is often considered a counter-majoritarian institution, the Court cannot extend the powers of the federal government through constitutional interpretation beyond the bounds allowed in the Constitution. Therefore, the only means to change the power structure of the federal government (the balance of …

Flipping The Script On Brady, Ion Meyn

Indiana Law Journal

Brady v. Maryland imposes a disclosure obligation on the prosecutor and, for this

reason, is understood to burden the prosecutor. This Article asks whether Brady also

benefits the prosecutor, and if so, how and to what extent does it accomplish this?

This Article first considers Brady’s structural impact—how the case influenced

broader dynamics of litigation. Before Brady, legislative reform transformed civil

and criminal litigation by providing pretrial information to civil defendants but not

to criminal defendants. Did this disparate treatment comport with due process?

Brady arguably answered this question by brokering a compromise: in exchange for

imposing minor obligations on …

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 …

Sticks, Stones, And So-Called Judges: Why The Era Of Trump Necessitates Revisiting Presidential Influence On The Courts, Quinn W. Crowley

Indiana Law Journal

This Note will be primarily divided into three main sections. Part I of this Note will begin by discussing the importance of judicial independence in modern society and the role of elected officials in shaping the public perception of the courts. Additionally, as problems of judicial legitimacy are age-old and date back to America’s founding, Part I will include a brief discussion of an early clash between President Thomas Jefferson and the courts.

Parts II and III of this Note will seek to place President Trump’s conduct towards the judicial branch within the proper historical context. Part II examines the …

The Resilient Foundation Of Democracy: The Legal Deconstruction Of The Washington Posts's Condemnation Of Edward Snowden, Hanna Kim

Indiana Law Journal

On September 17, 2016, The Washington Post (“the Post”) made history by being the first paper to ever call for the criminal prosecution of its own source —Edward Snowden. Yet, two years prior to this editorial, the Post accepted the 2014 Pulitzer Prize in Public Service for its “revelation of widespread secret surveillance by the National Security Agency”—an honor which would not have been bestowed had Snowden not leaked the documents through this news outlet. The other three major media outlets that received and published Snowden’s documents and findings—The Guardian, The New York Times, and The Intercept—all have taken the …

Understanding The Complicated Landscape Of Civil War Monuments, Jessica Owley, Jess Phelps

Indiana Law Journal

This essay examines the controversy regarding confederate monuments and attempts to contextualize this debate within the current preservation framework. While much attention has been paid to this topic over the past year, particularly with regard to “public” monuments, such discussion has generally failed to recognize the varied and complicated property law layers involved—which can fundamentally change the legal requirements for modification or removal. We propose a spectrum or framework for assessing these resources ranging from public to private, and we explore the messy space in-between these poles where most monuments actually fall. By highlighting these categories, we provide an initial …

The Prosser Myth Of Transferred Intent, Peter B. Kutner

Indiana Law Journal

The main theme of this Article is that Prosser advanced a mythical doctrine of transferred intent. What Prosser asserted to be the law was not the law when he wrote his article on transferred intent and amended his treatise. The cases he relied on to support his conclusions on transferred intent did not support them. Moreover, despite Prosser’s great influence on American tort law, Prosser’s position on transferred intent is not the law now and should not be. Its consequences are undesirable. Recognition of transferred intent as a basis of liability is due primarily to its inclusion in the First …

North Carolina State Board Of Dental Examiners V. Ftc: Aligning Antitrust Law With Commerce Clause Jurisprudence Through A Natural Shift Of State-Federal Balance Of Power, Marie Forney

Indiana Law Journal

The Supreme Court’s holding in North Carolina State Board of Dental Examiners v. FTC (NC Dental)1 in February 2015 demonstrates a natural shift in the balance of power from the states to the national government. As the country’s interstate and international economy has become more integrated, federal authority has likewise expanded.2 And although the federalism dichotomy has undergone periodic back-and-forth “swings” since the nation’s founding, the end result has been a net increase in federal power. NC Dental exemplifies this trend toward increasing national au-thority through the organic development of interstate commerce.

Compulsory Whiteness: Towards A Middle Eastern Legal Scholarship, John Tehranian

Indiana Law Journal

No abstract provided.

"On The Chastity Of Women All Property In The World Depends" : Injury From Sexual Slander In The Nineteenth Century, Lisa R. Pruitt

Indiana Law Journal

In this Article, Professor Pruitt discusses conceptions of the injury associated with defamation law, focusing in particular on sexual slander cases that were brought in the early nineteenth century, before statements that impugned a woman's chastity were deemed slander per se. During this time, women had to prove so-called "special damages" in order to state a cause of action. Courts showed some flexibility in what they recognized as constituting "special damages," even stretching to recognize pecuniary harm in damaged personal relationships. Nevertheless, courts refused to recognize injuries stemming from and related to emotional distress injuries, and they were often skeptical …

Civil Liberty And The Civil War: The Indianapolis Treason Trials, William Rehnquist

Indiana Law Journal

No abstract provided.

Ronald Dworkin's The Moral Reading Of The Constitution: A Critique, Raoul Berger

Indiana Law Journal

No abstract provided.

Jack Rakove's Rendition Of Original Meaning, Raoul Berger

Indiana Law Journal

No abstract provided.

On Political Boundary Lines, Multiculturalism, And The Liberal State, Sanford Levinson

Indiana Law Journal

Symposium: Law and Civil Society

An Essay On The Vicissitudes Of Civil Society With Special Reference To Scotland In The Eighteenth Century, Marvin B. Becker

Indiana Law Journal

Symposium: Law and Civil Society

Civil Society, Metaphysics, And Tolerance, David C. Williams

Indiana Law Journal

Symposium: Law and Civil Society

A Response To Marvin Becker, "An Essay On The Vicissitudes Of Civil Society With Special Reference To Scotland In The Eighteenth Century", Michael Grossberg

Indiana Law Journal

Symposium: Law and Civil Society

Individualism As Principle: Its Emergence, Institutionalization, And Contradictions, Political Philosophy, Adam B. Seligman

Indiana Law Journal

Symposium: Law and Civil Society

Civil Society And The American Foundings, Jack P. Greene

Indiana Law Journal

No abstract provided.

The Draw And Drawbacks Of Religious Enclaves In A Constitutional Democracy: Hasidic Public Schools In Kiryas Joel, Judith Lynn Failer

Indiana Law Journal

Symposium: Law and Civil Society

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

Rights And Politics, Joseph Raz

Indiana Law Journal

Presented on October 7, 1994, at the Indiana University School of Law-Bloomington, as the inaugural Jerome Hall Lecture.

The Future Of Our Past: The Legal Mind And The Legacy Of Classical Common-Law Thought, Donald H. Gjerdingen

Indiana Law Journal

No abstract provided.

The Political Process As Final Solution, Charles M. Freeland

Indiana Law Journal

No abstract provided.

Constitutional Authority In An Age Of Moral Indeterminacy, Ralph F. Gaebler

Indiana Law Journal

No abstract provided.

Freud And Critical Legal Studies: Contours Of A Radical Socio-Legal Psychoanalysis, David S. Caudill

Indiana Law Journal

No abstract provided.

On The Telos Of Man And Law: An Essay Concerning Morality And Positive Law, William N. Riley

Indiana Law Journal

No abstract provided.

A History Of Injunctions In England Before 1700, David W. Raack

Indiana Law Journal

No abstract provided.

Economic Analysis Of Legal Institutions: Explaining An "Inexplicable" Rule Of Roman Law, David Locke Hall, F. Douglas Raymond

Indiana Law Journal

No abstract provided.

The Law In The American Revolution And The Revolution In The Law: A Collection Of Review Essays On American Legal History, Edited By Hendrik Hartog, Doyce B. Nunis Jr.

Indiana Law Journal

No abstract provided.