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Articles 1 - 27 of 27
Full-Text Articles in Law
Respeaking The Bill Of Rights: A New Doctrine Of Incorporation, Kurt Lash
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 …
The 'Impractical And Anomalous' Consequences Of Territorial Inequity, Jayanth K. Krishnan
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
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 …
From Justice To Injustice: Lowering The Threshold Of European Consensus In Oliari And Others Versus Italy, Nazim Ziyadov
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
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
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
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 …
The Global Person: Pig-Human Embryos, Personhood, And Precision Medicine, Yvonne Cripps
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
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
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 …
Is The Antidiscrimination Project Being Ended?, Michael J. Zimmer
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
Rights Of Belonging For Women, Rebecca E. Zietlow
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
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 …
Rational Basis With Bite: Intermediate Scrutiny By Any Other Name, Gayle Lynn Pettinga
Rational Basis With Bite: Intermediate Scrutiny By Any Other Name, Gayle Lynn Pettinga
Indiana Law Journal
No abstract provided.
Government By Judiciary: John Hart Ely's "Invitation", Raoul Berger
Government By Judiciary: John Hart Ely's "Invitation", Raoul Berger
Indiana Law Journal
No abstract provided.
Prisoner Property Deprivations: Section 1983 And The Fourteenth Amendment, Steven H. Hazelrigg
Prisoner Property Deprivations: Section 1983 And The Fourteenth Amendment, Steven H. Hazelrigg
Indiana Law Journal
No abstract provided.
Obscenity, The Law And Religion, Thomas A. Long
Obscenity, The Law And Religion, Thomas A. Long
IUSTITIA
The long history of the relation between Western religion and secular law is both interesting and complex.' In what follows I shall discuss one current social issue which is illustrative of this relation,namely, the relatively recent legal-moral controversy over obscenity.
The Right To Counsel And The Role Of Counsel In Juvenile Court Proceedings, Daniel L. Skoler
The Right To Counsel And The Role Of Counsel In Juvenile Court Proceedings, Daniel L. Skoler
Indiana Law Journal
Symposium on Juvenile Problems: In re Gault
The Framing Of The Fourteenth Amendment, By Joseph B. James, Howard Jay Graham
The Framing Of The Fourteenth Amendment, By Joseph B. James, Howard Jay Graham
Indiana Law Journal
No abstract provided.
Equal Protection And The Racial Restrictive Covenant: A Reevaluation
Equal Protection And The Racial Restrictive Covenant: A Reevaluation
Indiana Law Journal
No abstract provided.
The Blaine Amendment And The Bill Of Rights, Alfred W. Meyer
The Blaine Amendment And The Bill Of Rights, Alfred W. Meyer
Articles by Maurer Faculty
No abstract provided.
State Constitutions, State Courts And First Amendment Freedoms, Monrad G. Paulsen
State Constitutions, State Courts And First Amendment Freedoms, Monrad G. Paulsen
Articles by Maurer Faculty
No abstract provided.
The Persistence Of Substantive Due Process In The States, Monrad G. Paulsen
The Persistence Of Substantive Due Process In The States, Monrad G. Paulsen
Articles by Maurer Faculty
No abstract provided.
Constitutional Law-Privileges And Immunities Clause Of The Fourteenth Amendment
Constitutional Law-Privileges And Immunities Clause Of The Fourteenth Amendment
Indiana Law Journal
No abstract provided.
Constitutional Law -- Equal Protection Clause -- Discrimination, Fowler V. Harper
Constitutional Law -- Equal Protection Clause -- Discrimination, Fowler V. Harper
Articles by Maurer Faculty
No abstract provided.
Due Process Of Law Under The United States Constitution, Hugh Evander Willis
Due Process Of Law Under The United States Constitution, Hugh Evander Willis
Articles by Maurer Faculty
No abstract provided.