Law Commons^™

Strolling Down Memory Lane, Touring An Historical Restoration, And The Constitution Of December 11, 1865, Mark A. Graber

William & Mary Bill of Rights Journal

The following pages [compare] a stroll down the Reconstruction section of memory lane with a tour of a historical restoration dedicated to reproducing the Constitution of December 11, 1865. Part I strolls down the Reconstruction section of memory lane by elaborating the conventional legal account of what Republicans were thinking when they sought to improve the Thirteenth Amendment’s Constitution immediately after the ratification of the constitutional ban on slavery was assured. Their most vital and often sole concern, legal opinions from the Slaughter-House Cases to Students for Fair Admissions v. Harvard agree, was to alleviate doubts among anti-slavery advocates about …

Recovering Constitutional Identity In Colonial South India: Sedition, Sovereignty, And Small-C Constitutionalism In Pudukkottai, Bharath Gururagavendran

National Law School Journal

Constitutional identity is easiest to identify when it has already been credentialed: by a constitutional text, constituent authorisation, or judicial recognition. What remains visible when those markers are absent? Through a historically grounded study of the ‘Little Kingdom’ of Pudukkottai, a princely state in colonial South India, this article examines whether constitutional identity can be recovered from the small-c life of a polity whose opportunities for formal constitution-making were structurally foreclosed. Pudukkottai had no big-C moment. Its constitutional life, if it had one, must be reconstructed from less authoritative materials. The article argues that the absence of a constitutional text …

The Enduring Relevance Of Congress Despite The Court's Shift To “Ordinary Reader” Statutory Interpretation, Abbe R. Gluck, Laila M. Robbins

Journal of Law and Policy

Has Congress become irrelevant to statutory interpretation? The dominant theoretical and doctrinal paradigm in American statutory interpretation has always been the conversation between Congress and the courts. Today, however, the Court’s new, second-generation textualists claim they have left Congress behind. They argue they have changed textualism’s perspective, from an “insider” perspective focused on Congress’s textual choices, to an “outsider” perspective based on how “ordinary people” read statutes. The Court’s self-professed shift away from a legiscentric approach, if true, would be a seismic shift in the conception of the judicial role. Whereas judges and scholars—including first-generation textualists—had for a century focused …

The Broad Church Of Modern Textualism, Nicole Steitz, Brian G. Slocum, Kevin Tobia

Journal of Law and Policy

Nearly thirty years ago, Justice Scalia’s Tanner lectures branded Holy Trinity Church v. United States (1892) as the anti-textualist archetype, a decision trumping the text’s plain meaning with a suspect judicial investigation of the law’s purpose or spirit. And so Holy Trinity seemed, until Gales and Solan’s groundbreaking empirical study supported an alternative reading of the key statutory term (“labor or service”) that would avoid this conflict between text and purpose. Taking inspiration from Gales and Solan, we reconsider Holy Trinity using the precepts of modern textualism, with its increased emphasis on context, pragmatics, anti-literalism, legal meaning, holistic meaning, non-compositionality, …

The Pet Fish Canon, William N. Eskridge Jr.

Journal of Law and Policy

Inspired by the work of the late Professor Larry Solan, this article proposes that judges recognize as one of the textualist canons of statutory construction a “pet fish” canon. Such a canon would posit that when an ordinary reader would understand two or more words to yield a meaning that is different than the sum of the two words defined separately, the statutory interpreter should not disaggregate them. The Roberts Court has already followed such a linguistic precept in some statutory cases, and this article proposes that the Court recognize this as a canon considered at least as seriously as …

Grammar & Syntax Arguments On The Roberts Court, Anita S. Krishnakumar

Journal of Law and Policy

In his excellent book, The Language of Judges, Professor Solan demonstrates how judges use grammatical or linguistic arguments to avoid acknowledging statutory ambiguity—and how they often get the grammar or linguistics wrong. Since his book was published, textualism has become the dominant interpretive approach on the U.S. Supreme Court—and we have seen increasingly prominent battles involving grammatical devices and rules. This comment takes Professor Solan’s analysis as a jumping off point to evaluate how grammar and linguistic arguments are employed on the modern Supreme Court, in the age of textualism. The comment offers a brief empirical and doctrinal assessment of …

Law And Equity On Appeal, Aaron-Andrew P. Bruhl

Faculty Publications

Most lawyers know that the Federal Rules of Civil Procedure merged the divergent trial procedures of the common law and of equity, but fewer are familiar with the development of federal appellate procedure. Here too there is a story of the merger of two distinct systems. At common law, a reviewing court examined the record for errors of law after the final trial judgment. In the equity tradition, an appeal was a rehearing of the law and the facts that aimed at achieving justice and did not need to await a final judgment. Unlike the story of federal trial procedure, …

Follow The Bloody Brick Road: Bleeding Kansas And The Emancipation Proclamation, Margaret Hu

William & Mary Bill of Rights Journal

To help illuminate Balkin’s project of Memory and Authority, this brief Essay considers a slice of American memory from Kansas’ historical archives and other primary sources, and examines its unique role in the Civil War. Specifically, it excavates the influence of Kansas’ leaders as advisors to President Abraham Lincoln. Prior to and during the Civil War, Lincoln relied upon the guidance of senior leaders from Kansas on matters ranging from guarding the White House, war strategies, the recruitment of former enslaved persons to the war effort, and the issuance of the Emancipation Proclamation as a part of an effective …

The Politics Of Constitutional Dignity Jurisprudence, Daniel Haefke

Brooklyn Law Review

This Article traces the politics of (human) dignity in US constitutional law. It reveals that the notion has undergone a conservative shift, which has resulted from Supreme Court Justices increasingly unleashing dignity’s dormant conservative potential. Legal scholars arguing for prominently including the notion in constitutional jurisprudence reflect the belief that adopting the language of dignity would push the Supreme Court to be more sensitive to progressive political demands. This progressive constitutional dignity optimism is historically plausible yet conceptually misguided. It is historically plausible considering the legacy of constitutional dignity in previous opinions of the Court. As the Article expounds, the …

Affirmative Action’S Asian American Problem, Huyen Pham, Joseph Thai

Faculty Scholarship

Asian American opponents of affirmative action have received both credit and blame for their pivotal role in toppling racial preferences in university admissions in Students for Fair Admissions v. Harvard (SFFA). Allied conservatives highlighted evidence of discrimination against Asian American applicants as a compelling reason to dismantle affirmative action; liberals either denied this discrimination existed or tolerated it as an acceptable cost of helping other minority applicants. But largely unacknowledged is the precipitating history of the Supreme Court’s marginalization of Asian American applicants and its decades of tacit approval of their exclusion from affirmative action programs. This unwritten …

The Role Of Accountability In Preserving Judicial Independence: Examining The Ethical Infrastructure Of The Federal Judicial Workplace, Susan Saab Fortney

Faculty Scholarship

After news reports of sexual harassment allegations involving federal judges, U.S. Supreme Court Chief Justice John Roberts asked the Director of the Administrative Office of the U.S. Courts to assemble a working group to address concerns related to misconduct in the federal judicial workplace. Following the working group’s report, the judiciary adopted recommendations relating to discrimination and harassment in the federal judiciary. Using the ethical infrastructure framework, this article reviews what changes have been made and what is missing. It explains how the steps taken largely focus on formal aspects of communicating and monitoring standards of conduct. Notably missing are …

Populist Secularism, Seval Yildirim

Journal Articles

This article argues that in the context of a developing democracy, the rise of religiously oriented parties should be viewed contextually as part of an ongoing process of democratic negotiation and consolidation. Using Turkey as a case study, this article argues that religion and secularism are best viewed as parts of a symbiotic relationship, informing each other’s identity, and defining characteristics through an ongoing process of negotiation.

The article discusses commonly used concepts relevant to secularism in general and argues for the need to distinguish between the secular, secularism, and secularization as a governance project. Through a historical survey of …

Constitutional Federalism And The Nature Of The Union, Anthony J. Bellia Jr., Bradford R. Clark

William & Mary Law Review

Federalism is an essential feature of the Constitution’s design and structure, but the Constitution does not spell out every respective authority of the federal government and the States in precise detail. This omission has led some observers to embrace broad—if not unlimited—federal power and reject certain longstanding federalism doctrines—such as state sovereign immunity, the anti-commandeering doctrine, and the equal sovereignty of the States. The objection to such doctrines is that the Constitution does not affirmatively grant States these sovereign rights and powers. This charge overlooks long-forgotten background context essential to faithful interpretation of the Constitution. The former British Colonies in …

Public Men's Rooms And The Legal Construction Of Gender And Privacy, Steven J. Macias

University of Cincinnati Law Review

This Article examines how the law is complicit in educating and socializing children into the cultural practices of gender and privacy. It accomplishes this by analyzing case law that involves minors and men’s public bathrooms. The men’s room is a place rife with social ambiguity, an ambiguity that has come to a head in recent transgender school bathroom cases. Although this Article is primarily concerned with the men’s bathroom as an important legal site in the development of gender and privacy for all youth, it discusses transgender (trans) rights cases as presenting the most fundamental challenge to the hegemonic logic …

Confronting The War On International Law In The United States, Rebecca Ingber

Online Publications

Harold Hongju Koh’s The National Security Constitution in the 21st Century is a code red threat assessment of the state of public law in America today. True to Koh’s nature, he does not leave us without hope; rather he devotes a sizeable portion of the book to calls for reform, from the legal frameworks governing war powers and intelligence to the division of labor in the national security legal bureaucracy plodding away within the deepest (secure) chambers of the executive branch itself.

Searching For The Radical Constitution, Robert L. Tsai

Faculty Scholarship

Due to its length and richness, The Constitutional Bind could be considered several books in one. It is a socialist critique of American political development that highlights the tradeoffs from incremental rather than transformational progress. It is also a partial intellectual history of radical and alternative constitutional theories marginalized by the set of ideas that came to rule. Finally, the book serves as an urgent plea for fellow citizens to give up the mesmerizing, yet frustratingly confining rhetoric of twentieth-century liberal constitutionalism.

Given Rana’s central objective of investigating the rise of the “creedal” approach to American constitutionalism, I believe it …

A Taking By Any Other Name: Why Exclusionary Zoning Should Be Classified As A Per Se Taking, Matthew J. Ruppel

Seattle University Law Review Online

The housing affordability crisis in U.S. cities, particularly on the West Coast, has been well publicized in recent years, and the search for solutions has drawn together allies from across the ideological spectrum. While various cities and states have rolled out many types of reforms, there remains a widespread regulatory failure preventing the adaptation of cities to modern demands. A primary culprit is exclusionary zoning: plot-by-plot designation of which types of structures can be built on a piece of property— particularly which types of structures are absolutely prohibited from being built—and the broad definitional standards to which those structures must …

With Thanks From A Student And Alumna, Nancy Diesel Mills

Maine Law Review

On the first day of orientation for my law school class, we sat in the Moot Courtroom. After introductory remarks, the Dean was announced. He wore a button down collar shirt, Rep tie, gray suit, and Bean boots. He welcomed us and he told us how great we were. Mostly, he cracked jokes, some about himself, and rattled whatever it is he keeps in his pockets. It was classic Kinvin; and I knew, then, that I had chosen the right place.

L. Kinvin Wroth: A Personal Canadian Appreciation, Innis Christie

Maine Law Review

I became Dean of Dalhousie Law School in Halifax, Nova Scotia, Canada in July of 1985. Since then Kinvin Wroth has been one of the constants, and one of the big pluses, in my working life.

A Tribute To A Colleague Who Has Endured, Orlando E. Delogu

Maine Law Review

There is a certain vogue in the academic world, and certainly in the field of Law, that would measure one's worthy and real value to the profession by the number of astute moves from school to school made in the course of a career. One hoped to ascend, at four or five year intervavls, an unpublished but generally accepted institutional hierarchy (or pecking order). Each move would be marked by acknowledged teaching accomplishment and scholarly writing. In the professional life well-lived these moves would culminate in a chair or senior professorship at any one of ten or a dozen national …

An Appreciation Of L. Kinvin Wroth, Vincent L. Mckusick

Maine Law Review

Kinvin Wroth is a man who sports many hats. After wearing his Dean's hat for twelve years with confidence and grace, Kinvin, at the end of the year, is taking off that hat and returning to wearing full-time his wide assortment of other headgear. He takes off his Dean's hat just after he reaches the age of 58, at the height of his productive powers of scholarship, teaching, and public service. For many years to come, we of the State of Maine will continue to benefit from his labors, performed under his many other hats. But the end of his …

Remarks By The Chancellor, Robert L. Woodbury

Maine Law Review

In a time when university administrators seem to endure very short terms, it is remarkable that Kinvin Wroth served as Dean for 12 years. At the University of Southern Maine alone, he served with four presidents, four chancellors, four provosts, and a score of colleague deans. His permanent and productive legacy rests in no small part on the length of his commitment as well as its character.

Federal Election Commission And Indiana Secretary Of State Campaign Finance Information Resoures, Bert Chapman

Libraries Faculty and Staff Presentations

This presentation covers campaign finance information resources produced by the Federal Election Commission (FEC) and Indiana Secretary of State. It describes how these agencies began, details how they oversee and regulate U.S. federal and Indiana state elections, and documents contributions made by individuals, organizations, political parties, and political action committees to individual candidates and organizations. Reporting documentation on these election races is also included.

Obstructing Precedent, Bill Watson

Northwestern University Law Review

Critics of the Supreme Court sometimes accuse the Justices of disrespecting or being unfaithful to precedent—of undermining certain precedents while leaving them formally in place. Yet it remains unclear what exactly these criticisms mean or why they point to anything objectionable. This Article proposes that critics are often drawing attention to a particular practice: obstructing precedent. A better grasp of what obstructing precedent is and when it is legitimate is important to understanding the Roberts Court’s treatment of precedent in a range of cases.

A court obstructs precedent when it refuses to cooperate with its prior self in building a …

Oliva Elected To American Law Institute, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

Jenn Oliva, Professor of Law and Val Nolan Faculty Fellow, has been elected to the American Law Institute, the organization announced yesterday (Oct. 4).

She becomes the 18th member of the Indiana University Maurer School of Law faculty to earn the prestigious recognition.

“This is a tremendous honor for Professor Oliva and we are proud to have her on our faculty,” said Indiana Law Dean Christiana Ochoa, who holds an ex officio role with the ALI. “Since Jenn joined us in 2023 she’s quickly become an invaluable member of the Maurer community and we’re thrilled to see her recognized.”

A Century Of Scholarship: University Of Arkansas School Of Law Faculty Scholarship 1924–2023, Steven R. Probst

Arkansas Scholarly Editions

Steven R. Probst’s bibliography A Century of Scholarship: University of Arkansas School of Law Faculty Scholarship 1924–2023 marks an important anniversary: the 2024 centennial of the U of A School of Law. To honor this occasion, Probst has assembled, through extensive archival research, the list of publications that U of A law faculty have authored over the course of the school’s hundred-year history. A Century of Scholarship is a testament to the invaluable scholarly contributions of these extraordinary thinkers who have shaped our legal landscape.

From The Editors, Robert Dinerstein, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

This issue includes articles, conference transcripts, and book reviews that date to 2019. The woeful delay is solely the result of our own editorial failure, and we wish to apologize on behalf of the Journal to our readers and to the many contributing authors who put their trust in us. Rest assured that procedures have been established to prevent reoccurrence of such unacceptable time lags. But do know that we appreciate having fallen far short of professional standards in this instance.

Theistic Illiberal Constitutionalism: A Review Of Adrian Vermeule’S Common Good Constitutionalism, Kyron J. Huigens

Articles

Adrian Vermeule’s Common Good Constitutionalism drew a remarkable amount of attention from constitutional law scholars when it was published in 2020. About eighteen months later, Vermeule published a piece complaining that the critics had missed the point, that they had ignored the natural law jurisprudence that grounds the work. He was correct. This Review addresses Vermeule’s natural law jurisprudence, emphasizing the fact that it is a religious natural law jurisprudence. His arguments are in the tradition of ScholasticismAristotelian logic incorporated into Christian theology by St. Thomas Aquinas. Scholasticism is a remarkably weak foundation for constitutional jurisprudence. It is a vast …

Remembering Robert H. Mckinney, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

The Maurer School of Law is mourning the passing of its graduate Robert H. McKinney, a visionary attorney, businessman, civic leader, and philanthropist, who died over the weekend at his home in Michigan. He was 98.

McKinney enrolled at the IU School of Law in Indianapolis after his World War II duties, but was recalled to active duty during the Korean War. McKinney transferred to IU’s law school in Bloomington, where he graduated in 1952.

He remained actively involved with both law schools—and the university—for more than 70 years. In 2011 the IU School of Law in Indianapolis was renamed …

Is The Constitution Of 1787 A White Supremacist Document? Against Essentialism In Constitutional Interpretation, David S. Schwartz

William & Mary Bill of Rights Journal

A curious convergence is emerging in legal academia around the conclusion that the 1787 Constitution is a white supremacist document. Although most originalists would deny that contention, their methodology strongly favors, if it does not compel, an agreement with progressive, “neo-Garrisonian” scholars that the Constitution of 1787 is indeed a white supremacist document. Both the neo-Garrisonian and originalist elements of this implicit convergence stem from their “essentialism” in Constitutional interpretation: the idea that the Constitution or its terms or provisions carry a uniquely and objectively correct meaning, invariant over time, and independent of our evolving normative commitments.

This Article argues …