Law Commons^™

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 …

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 …

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 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 …

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 …

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.

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 …

Bringing In The State: Toward A Constitutional Duty To Protect From Mob Violence, Susan S. Kuo

Indiana Law Journal

No abstract provided.

Jack Rakove's Rendition Of Original Meaning, Raoul Berger

Indiana Law Journal

No abstract provided.

In Search Of The Post-Positivist Jury, Mark Cammack

Indiana Law Journal

No abstract provided.

The Role Of Religious Values In Judicial Decision Making, Scott C. Idleman

Indiana Law Journal

No abstract provided.

Substantive Due Process Analysis And The Lockean Liberal Tradition: Rethinking The Modern Privacy Cases, Jeffrey S. Koehlinger

Indiana Law Journal

No abstract provided.

Rational Basis With Bite: Intermediate Scrutiny By Any Other Name, Gayle Lynn Pettinga

Indiana Law Journal

No abstract provided.

The Right To Counsel In Prosecutorial Interrogations, Daniel E. Serban

Indiana Law Journal

NOTE: A printing error labeled this issue Spring 1982, it should have been labeled Summer 1982

Bakke, Weber And Fullilove: Benign Discrimination And Congressional Power To Enforce The Fourteenth Amendment, Robert A. Bohrer

Indiana Law Journal

No abstract provided.

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

Indiana Law Journal

No abstract provided.

Delegation To Private Parties In American Constitutional Law, George W. Liebmann

Indiana Law Journal

No abstract provided.

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

Indiana Law Journal

No abstract provided.

Equal Protection And The Racial Restrictive Covenant: A Reevaluation

Indiana Law Journal

No abstract provided.

Restraints On Alienation

Indiana Law Journal

Notes and Comments: Constitutional Law

Right To Counsel

Indiana Law Journal

Constitutional Law Note

State Property Taxes And The Federal Supreme Court, Robert C. Brown

Indiana Law Journal

No abstract provided.

Constitutional Law-Privileges And Immunities Clause Of The Fourteenth Amendment

Indiana Law Journal

No abstract provided.

State Taxation Of Non-Residents On Stock Of Domestic Corporations, Robert C. Brown

Indiana Law Journal

No abstract provided.