Law Commons^™

Ochoa, Big Ten Law Deans Pledge Support For Diversity Ahead Of Scotus Affirmative Action Ruling, The Indiana Lawyer

Christiana Ochoa (7/22-10/22 Acting; 11/2022-)

s the U.S. Supreme Court prepares to hand down a decision that could fundamentally alter affirmative action, a group of law school deans — including Dean Christiana Ochoa of the Indiana University Maurer School of Law — has issued a statement affirming the deans’ commitment to diversity.

The group of 15 deans represent Big Ten law schools, including IU Maurer. In their statement — which IU Maurer posted to its official Facebook page — the deans say they are “joining together to affirm our commitment to advancing diversity, equity, and inclusion through legally permissible means, regardless of the outcome of …

Respeaking The Bill Of Rights: A New Doctrine Of Incorporation, Kurt Lash

Indiana Law Journal

The incorporation of the Bill of Rights against the states by way of the Fourteenth Amendment raises a host of textual, historical, and doctrinal difficulties. This is true even if (especially if) we accept the Fourteenth Amendment as having made the original Bill of Rights binding against the states. Does this mean we have two Bills of Rights, one applicable against the federal government with a “1791” meaning and a second applicable against the state governments with an “1868” meaning? Do 1791 understandings carry forward into the 1868 amendment? Or do 1868 understandings of the Bill of Rights carry backward …

Administrative Investigations, Aram A. Gavoor, Steven A. Platt

Indiana Law Journal

This Article establishes the subject of federal administrative investigations as a new area of study in administrative law. While the literature has addressed investigations by specific agencies and congressional investigations, there is no general account for the trans-substantive constitutional value of administrative investigations. This Article provides such an account by exploring the positive law, agency behaviors, and constraints pertaining to this unresearched field. It concludes with some urgency that the Administrative Procedure Act of 1946—the statute that stands as a bill of rights for the Administrative State—does not serve to regulate administrative investigations and that Article III courts have held …

The 'Impractical And Anomalous' Consequences Of Territorial Inequity, Jayanth K. Krishnan

Articles by Maurer Faculty

Located in the South Pacific Ocean, American Samoa is one of five populated “unincorporated territories” of the United States. It is unique, though, as those born there are not recognized as American citizens at birth and instead are deemed “noncitizen U.S. nationals.” They enjoy some, but not all, constitutional protections. Two federal appellate courts—the D.C. Circuit (in 2015) and the Tenth Circuit (in 2021)—have ruled that this classification does not violate the Fourteenth Amendment’s Citizenship Clause. Both courts have stated that it would be “impractical” and “anomalous” to extend birthright citizenship to the American Samoan community.

Drawing upon a powerful …

First Amendment Freedoms Diluted: The Impact Of Disclosure Requirements On Nonprofit Charities, Bailie Mittman

Indiana Law Journal

Since the birth of the Bill of Rights in 1791, the freedoms protected by the First Amendment have been cherished by all members of this nation. The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” Over time, courts have acknowledged that the freedom to speak freely means very little if the guarantee is not protected by an additional right: the freedom to associate. Thus, the freedom of expressive association stands as an essential component of an individual’s free speech rights and state infringement on associative rights has the power of potentially …

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 …

Sharenting And The (Potential) Right To Be Forgotten, Keltie Haley

Indiana Law Journal

Part I of this Note serves as an evaluation of parental use of social media and

further seeks to draw attention to the social and developmental impact parental

oversharing can have on children. Part II examines the tension between parents’

constitutional rights to direct the upbringing of their children, as well as their First

Amendment interest in online expression, and their children’s interest in personal

data security and privacy. Part III provides an overview of the European Union’s

right to be forgotten framework in the sharenting context and considers the

plausibility of implementing such a framework in the United States. …

Reevaluating Politicized Identity & Notions Of An American Political Community In The Legal & Political Process, Marvin L. Astrada Jd, Phd

Indiana Journal of Law and Social Equality

No abstract provided.

The Noisy "Silent Witness": The Misperception And Misuse Of Criminal Video Evidence, Aaron M. Williams

Indiana Law Journal

This Note examines recent developments in the research of situational video evidence biases. Part I examines the current and growing body of psychological research into the various situational biases that can affect the reliability of video evidence and the gaps in this research that require further attention from researchers and legal academics. Because these biases do not “operate in a vacuum,” Part I also examines some of the recent and exciting research into the interaction between situational and dispositional biases. Part II examines the development of camera and video processing technology and its limitations as a means of mitigating such …

From Justice To Injustice: Lowering The Threshold Of European Consensus In Oliari And Others Versus Italy, Nazim Ziyadov

Indiana Journal of Global Legal Studies

Oliari and Others v. Italy, decided by the European Court of Human Rights (ECHR) in 2015, changed its case law. The ECHR changed its position stated in Schalk and Kopf v. Austria (2010) when evaluating an alleged violation of Article 8 of the European Convention on Human Rights. It concluded that Italy has a positive obligation under the convention to guarantee alternative legal recognition for same-sex couples. The same conclusion was not reached in Schalk. In Oliari and Others, the ECHR heavily relied on the European consensus doctrine and eventually deepened formalization of two different institutions (marriage and civil unions). …

The Democracy Ratchet, Derek T. Muller

Indiana Law Journal

This Article proceeds in five Parts. Part I identifies recent instances in which federal courts have invoked a version of the Democracy Ratchet. It identifies the salient traits of the Democracy Ratchet in these cases. Part II describes why the Democracy Ratchet has gained attention, primarily as a tactic of litigants and as a convenient benchmark in preliminary injunction cases. Part III examines the history of the major federal causes of action concerning election administration—Section 2 of the Voting Rights Act, the Burdick balancing test, and the Equal Protection Clause. In each, it traces the path of the doctrine to …

Devotion ̶T̶O̶ And The Rule Of Law: Acknowledging The Role Of Religious Values In Judicial Decision-Making, Priya Purohit

Indiana Law Journal

This Comment advocates for the acknowledgment of religious values in judicial decision-making in three parts. Part I explores the role of religion in American politics, and more specifically, the role of religion in federal judicial confirmation hearings and state-level judicial elections. Membership to an institutionalized religion often performs an essential gatekeeping function when it comes to assessing the background or personal values of a candidate for political or judicial office. The initially positive role of religion in judicial selection processes suggests that the practice of refusing to acknowledge the role that religion likely already plays in judicial decision-making is wholly …

The Resistance & The Stubborn But Unsurprising Persistence Of Hate And Extremism In The United States, Jeannine Bell

Indiana Journal of Global Legal Studies

Though the far right has a long history in the United States, the presidential campaign and then election of Donald Trump brought the movement out of the shadows. This article will analyze the rise in White supremacist activity in the United States-from well-publicized mass actions like the White supremacist march in Charlottesville in August 2017 to individual acts of violence happening since November 2016. This article focuses on contextualizing such incidents within this contemporary period and argues that overt expressions of racism and racist violence are nothing new. The article closes with a call to strengthen the current legal remedies …

Animus And Its Alternatives: Constitutional Principle And Judicial Prudence, Daniel O. Conkle

Articles by Maurer Faculty

In a series of cases addressing sexual orientation and other issues, the Supreme Court has ruled that animus-based lawmaking is constitutionally impermissible. The Court treats animus as an independent and sufficient basis for invalidation. Moreover, it appears to regard animus as a doctrine of first resort, to be utilized even when an alternative constitutional rationale, such as declaring a challenged classification suspect or quasi-suspect, would readily justify the same result. Responding especially to Professor William D. Araiza’s elaboration and defense of the Court’s animus doctrine, I agree that this doctrine is sound, indeed compelling, as a matter of constitutional principle. …

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.

How To Improve The Debt Ceiling To Fit A Partisan Government: A Global Examination Of Which International Solutions Excel, Sarah Love

Indiana Journal of Global Legal Studies

This Note explores the changing role the debt ceiling has played within the United States and considers how that role should be altered moving forward. The debt ceiling's history and its political connections are discussed as a backdrop to how the United States might alter the debt ceiling to limit both future government shutdown and political gridlock. This Note examines both domestic and international solutions to the debt ceiling problem with an emphasis on the latter. In particular, the Note focuses on the possible international solution of adopting a system similar to Denmark's debt ceiling, or adopting a high debt-to- …

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.

The Next Reapportionment Revolution, Ashira Ostrow

Indiana Law Journal

In the 1960s, the Supreme Court famously imposed the one-person, one-vote requirement on federal, state, and local legislatures. The doctrine rapidly resolved the problem of malapportioned districts. Within just a few years, legislatures across the nation were reapportioned to equalize the population between districts. Sadly, however, the national commitment to equal-population districts has led directly to the current crisis of political gerrymandering. The boundaries of equal-population districts must be redrawn every ten years to maintain population equality. Even with rigid adherence to population requirements, district boundaries are easily manipulated to secure incumbent seats and advance partisan interests. Redistricting is rightly …

Dissenting From History: The False Narratives Of The Obergefell Dissents, Christopher R. Leslie

Indiana Law Journal

According to a quote attributed to numerous philosophers and political leaders, “History is written by victors.”1 In the legal battle over same-sex marriage, those opposed to marriage equality have attempted to disprove this age-old adage. In response to the majority opinion in Obergefell v. Hodges—which held that state laws banning same-sex marriage violate the Fourteenth Amendment—each of the four dissenting Justices issued his own dissenting opinion. Every one of these dissents misrepresented the circumstances and precedent leading up to the Obergefell decision. Collectively, the Obergefell dissenters have valiantly tried to rewrite America’s legal, constitutional, and social history, all in an …

Post-Racialism And The End Of Strict Scrutiny, David Schraub

Indiana Law Journal

In recent years, a growing social consensus has emerged around the aspiration of a “post-racial” America: one where race is no longer a fault line for social strife or, perhaps, a morally significant trait whatsoever. This ambition, however, lies in tension with the most basic constitutional principle governing our treatment of race in the public sphere: that of “strict scrutiny.” Post-racialism seeks to diminish the salience of race to near negligibility. The strict scrutiny of racial classifications, by contrast, significantly enhances the salience of race by treating it differently from virtually every other personal attribute or characteristic—including hair or eye …

Parents Involved And The Struggle For Historical Memory­, Mark Tushnet

Indiana Law Journal

In his Jerome Hall Lecture, Professor Tushnet addresses the legacy of Brown v. Board of Education in the more recent case of Parents Involved in Community Schools v. Seattle School Dist. No. 1 (PICS), which struck down the voluntary school integration programs used in Seattle and Louisville. As Chief Justice Roberts wrote, an important “debate” in the PICS case was over “which side is more faithful to the heritage” of Brown v. Board of Education. That debate is part of what historians have called the struggle for historical memory. The politics of memory in PICS is not simply a struggle …

Commonality And The Constitution: A Framework For Federal And State Court Class Actions, Joseph A. Seiner

Indiana Law Journal

In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), the Supreme Court concluded that the allegations of pay discrimination in a case brought by over one million female employees lacked sufficient commonality to warrant class certification under Federal Rule of Civil Procedure 23(a). Though the case was expressly decided under the Federal Rules, some well-known employer groups have begun to advance the argument that Wal-Mart was decided on constitutional grounds. These advocates maintain that the Supreme Court’s decision creates a commonality standard for all class-action plaintiffs—regardless of whether those litigants bring their claims in federal or state court. …

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 …

Is The Antidiscrimination Project Being Ended?, Michael J. Zimmer

Indiana Journal of Law and Social Equality

No abstract provided.

Rights Of Belonging For Women, Rebecca E. Zietlow

Indiana Journal of Law and Social Equality

No abstract provided.

Affirmative Action And Academic Freedom: Why The Supreme Court Should Continue Deferring To Faculty Judgments About The Value Of Educational Diversity, Steve Sanders

Indiana Journal of Law and Social Equality

No abstract provided.

Incorporation Of The Establishment Clause Against The States: A Logical, Textual, And Historical Account, Frederick Mark Gedicks

Indiana Law Journal

Incorporation of the Establishment Clause against the states through the Fourteenth Amendment is logically and textually impossible—so say most academics, a few lower-court judges, and a Supreme Court Justice. They maintain that because the Clause was originally understood as a structural limitation that protected state power against the federal government, it cannot restrain state power or fit within the Fourteenth Amendment texts that protect personal rights— indeed, that attempts to show that it does are laughable.

This purported incoherence and textual inconsistency enable anti-incorporation critics to avoid serious engagement of the anti-establishment dimensions of Reconstruction history. They also undermine the …

Hess V. Indiana Revisited: A Panel Discussion With Case Participants (Video), Ralph F. Gaebler, Richard Vaughan

Maurer Law Events

On November 19th, 2004, a panel discussion was held in the Moot Court Room of the Indiana University-Bloomington School of Law. The topic of the discussion was the landmark United States Supreme Court case, Hess v. Indiana. The case is particularly relevant to the law school because two members of the faculty (Tom Schornhorst and Pat Baude) served as lawyers to the defendant Greg Hess. Additionally, the protest and arrest took place half a block from the law school in front of the University's administration building (Bryan Hall) in 1970.

Joining Professors Schornhorst and Baude on the panel are three …

Multivocal Prejudices And Homo Equality, William N. Eskridge

Indiana Law Journal

Addison C. Harris Lecture, October 27, 1998, Indiana University Law School.

"Distinctions Without A Difference"; How The Sixth Circuit Misread Romer V. Evans, Jason D. Kimpel

Indiana Law Journal

No abstract provided.