Law Commons^™

Congressional Standing To Sue: The Role Of Courts And Congress In U.S. Constitutional Democracy, Vicki C. Jackson

Indiana Law Journal

In recent years, legislatures and their members have increasingly asserted standing to sue other branches of government, in controversies involving state legislators or legislatures as party litigants and in controversies involving members of or parts of the U.S. Congress. These cases present challenging questions for the federal Article III courts, whose jurisdiction has been interpreted to be bounded by “justiciability” doctrines, including that the party invoking federal court jurisdiction must have standing to do so. This Essay will focus on congressional standing, discussing case law involving claims by state legislatures or legislators to the extent they are relevant.1 It will …

Fourth Amendment Localism, Wayne A. Logan

Indiana Law Journal

INTRODUCTION - p. 370

I. SUBNATIONAL CONSTITUTIONALISM - p. 376

A. SUBSTANTIVE LAW - p. 377

B. GEOGRAPHY - p. 379

C. RESOURCES - p. 381

II. THE LOCALISTS - p. 382

A. “NEW DEMOCRATISTS” - p. 383

B. “NEW ADMINISTRATIVISTS” - p. 386

C. SUMMARY - p. 389

III. ASSESSING LOCALISM’S LIMITS - p. 391

A. TAILORING - p. 391

B. EXPERIMENTATION - p. 399

C. TIEBOUT SORTING AND EXTERNALITIES - p. 404

IV. WHITHER FOURTH AMENDMENT LOCALISM - p. 408

A. FOURTH AMENDMENT EXCEPTIONALISM - p. 409

1. INDIVIDUAL INTERESTS - p. 409
2. STRUCTURAL DEMOCRATIC INTERESTS - p. 411 …

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 …

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 …

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, …

Ordinariness As Equality, Elise C. Boddie

Indiana Law Journal

This Essay argues for an equality norm of racial ordinariness. Ordinariness here refers to the state of being treated as a full, complex person and a rightful recipient of human concern. As a norm, its purpose is to focus constitutional attention on common, everyday interactions as sources of racial indignity. It also seeks to sensitize courts and other constitutional actors to the infinite varieties and grittier dimensions of discrimination through the “understandings of everyday folk.”

Part I explains why ordinariness matters and the importance of everyday interactions to achieving ordinariness. It discusses these points through the lens of a true …

The Limits On Congress's Power To Do Nothing: A Preliminary Inquiry, William P. Marshall

Indiana Law Journal

As Part I of this Essay will show, arguments for limiting Congress’s authority to do nothing are not readily found in history, text, or constitutional structure. Part I concludes, however, that the need for establishing some constitutional limits on congressional inaction is nevertheless compelling because of the seriousness of the dangers involved. Accordingly, Part II goes on to advance an approach that would limit Congress’s power to do nothing in certain circumstances. Specifically, Part II proposes an approach that would limit Congress’s power to do nothing based on the type of power that Congress is (or is not) exercising. Congress …

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 …

Undue Burdens And Potential Opportunities In Voting Rights And Abortion Law, Pamela S. Karlan

Indiana Law Journal

One of the problems with the way we have tried to build a more just constitutional law is our failure to see, and then to make the most of, doctrinal connections across constitutional subfields—that is, to build constitutional bridges. This Essay seeks to build one such bridge between two areas of legal doctrine that might seem relatively disconnected from one another: voting rights and reproductive justice.

Many years ago, I joked about one aspect of that connection: “Redistricting, like reproduction, combines lofty goals, deep passions about identity and instincts for self-preservation, increasing reliance on technology, and often a need to …

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

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 …

Military Officers And The Civil Office Ban, Stephen Vladeck

Indiana Law Journal

In the symposium Essay that follows, I aim to push back against this impression by introducing readers to an important—but little-known—constraint on the militarization of civilian government: the ban on active-duty military officers holding “civil office” codified today at 10 U.S.C. § 973(b). Like its far-better-known contemporary, the Posse Comitatus Act of 1878, the civil office ban was enacted after the Civil War as a means of limiting the ability of the military to exercise control over civilian matters. As the Ninth Circuit put it in 1975, its purpose was “to assure civilian preeminence in government, i.e., to prevent the …

The Consumer Financial Protection Bureau's Structural Integrity And A Call For Adaptive And Incremental Agency Design Policy, Hannah Clendening

Indiana Law Journal

INTRODUCTION

I. UNDERSTANDING AND RATIONALIZING COMPETING DESIGN OBJECTIVES

A. CONGRESSIONAL INTENT AND THE CFPB’S FORMATION

B. D.C. CIRCUIT’S REASONING IN PHH CORP. V. CONSUMER FINANCIAL PROTECTION BUREAU

C. BASIC TENETS OF LEADING ORGANIZATIONAL DESIGN THEORIES

D. ANOTHER LOOMING CONSIDERATION: AGENCY CAPTURE

II. A NEED FOR ADAPTIVE AND INCREMENTAL APPROACHES TO AGENCY DESIGN

CONCLUSION

Reciprocal Immunity, Colin Miller

Indiana Law Journal

This essay advances a reciprocal rights theory. It argues that the Constitution precludes statutes and rules from providing nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant’s ability to secure a fair trial, unless reciprocity would implicate a significant state interest. Therefore, unless a significant State interest is involved, a grant of immunity to a prosecution witness should trigger reciprocal immunity to a directly contradictory defense witness.

Foreword, Dawn Johnsen

Indiana Law Journal

The Future of the U.S. Constitution: A Symposium. April 14-15, 2017, Bloomington, Indiana. Sponsored by Indiana University Maurer School of Law, Indiana Law Journal & the American Constitution Society for Law and Policy.

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 …

Utopian Thinking For Progressive Constitutionalists, Mark Tushnet

Indiana Law Journal

The opening pages of Rousseau’s Social Contract have two striking phrases. The more celebrated is, “[m]an was born free, and everywhere he is in chains.” That, though, is preceded by this: “I want to inquire whether, taking men as they are and laws as they can be made to be, it is possible to establish some just and reliable rule of administration in civil affairs.” I take this second sentence as my guide: Taking the textual Constitution as it is and with the interpreted Constitution as it could be, can there be a constitutionalism that progressives could wholeheartedly endorse?

I …

Is The Second Amendment Becoming Irrelevant?, A Winkler

Indiana Law Journal

Why might the Second Amendment cease to serve this vital constitutional function? The explanation begins with the difference between how the Second Amendment is invoked in political debates and how the amendment is invoked in court. There are, it seems, two Second Amendments. There is a Judicial Second Amendment comprised of court decisions interpreting the provision, and there is an Aspirational Second Amendment that is used in political dialogue. These two versions of the Second Amendment are different; the aspirational one is far more hostile to gun laws than the judicial one.

Moreover, the Aspirational Second Amendment is overtaking the …

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 …