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Outcome Sensitivity And The Constitutional Law Of Criminal Procedure, Lee Kovarsky Jan 2023

Outcome Sensitivity And The Constitutional Law Of Criminal Procedure, Lee Kovarsky

Indiana Law Journal

Iconic criminal procedure doctrines that perform the same function go by different names. When constitutionally disfavored conduct taints a criminal proceeding, courts must determine how much the taint affected an outcome—and whether the damage requires judicial relief. These doctrinal constructs calibrate judicial responses to, among other things, deficient defense lawyering (prejudice), wrongful State suppression (materiality), unlawful policing (attenuation), and an assortment of trial-court mistakes (harmless error). I refer to these constructs, which tightly orbit the constitutional law of criminal procedure, as rules of “outcome sensitivity.” Formal differences in sensitivity rules remain enduring puzzles subject to only the most superficial inspection. …


The Post-Truth First Amendment, Sarah Haan Oct 2019

The Post-Truth First Amendment, Sarah Haan

Indiana Law Journal

Post-truthism is widely viewed as a political problem. This Article explores posttruthism as a constitutional law problem, and argues that, because post-truthism offers a normative framework for regulating information, we should take it seriously as a basis for law.

In its exploration of the influence of post-truth ideas on law, the Article focuses on the compelled speech doctrine. When the State mandates disclosure, it pits the interests of unwilling speakers against the interests of listeners. In the twenty-first century, speakers who are targeted by mandatory disclosure laws are often organizational actors with informational advantages, such as corporations. Listeners who stand …


The Recent Unpleasantness: Understanding The Cycles Of Constitutional Time, Jack M. Balkin Jan 2019

The Recent Unpleasantness: Understanding The Cycles Of Constitutional Time, Jack M. Balkin

Indiana Law Journal

In this Article, I will talk about what I expect is going to happen in the next five to ten years. Unlike eclipses, however, one can’t be entirely sure of the future. Politics is not astronomy, and human affairs do not operate like clockwork. Moreover, we can’t assume that everything is already foreordained: that if people simply sit on their hands and do nothing, the cycles I describe in this lecture will take care of themselves. Quite the contrary. I am telling a story about what happens in the long run, but it is not a deterministic story. The actions …


Sites Of Storytelling: Supreme Court Confirmation Hearings, Patrick Barry Jan 2019

Sites Of Storytelling: Supreme Court Confirmation Hearings, Patrick Barry

Indiana Law Journal

Supreme Court confirmation hearings have an interesting biographical feature: before nominees even say a word, many words are said about them. This feature—which has been on prominent display in the confirmation hearings of Judge Brett Kavanaugh—is a product of how each senator on the confirmation committee is allowed to make an opening statement. Some of these statements are, as Robert Bork remembers from his own confirmation hearing, “lavish in their praise,” some are “lavish in their denunciations,” and some are “lavish in their equivocations.” The result is a disorienting kind of biography by committee, one which produces not one all-encompassing …


The Constitutionality Of A National Wealth Tax, Dawn Johnsen, Walter Dellinger Jan 2018

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 …


Trump, The Court, And Constitutional Law, Erwin Chemerinsky Jan 2018

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, …


Trump As Constitutional Failure, Jamal Greene Jan 2018

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 …


Evolving Values, Animus, And Same-Sex Marriage, Daniel O. Conkle Jan 2014

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 Full Faith And Credit Clause Still "Irrelevant" To Same-Sex Marriage?: Toward A Reconsideration Of The Conventional Wisdom, Steve Sanders Jan 2014

Is The Full Faith And Credit Clause Still "Irrelevant" To Same-Sex Marriage?: Toward A Reconsideration Of The Conventional Wisdom, Steve Sanders

Indiana Law Journal

Essays on the Implications of Windsor and Perry


Our Schizoid Approach To The United States Constitution: Competing Narratives Of Constitutional Dynamism And Stasis, Sanford Levinson Oct 2009

Our Schizoid Approach To The United States Constitution: Competing Narratives Of Constitutional Dynamism And Stasis, Sanford Levinson

Indiana Law Journal

Jerome Hall Lecture at the Indiana University Maurer School of Law - Bloomington on October 3, 2008


Letting Statutory Tails Wag Constitutional Dogs: Have The Bivens Dissenters Prevailed?, George D. Brown Apr 1989

Letting Statutory Tails Wag Constitutional Dogs: Have The Bivens Dissenters Prevailed?, George D. Brown

Indiana Law Journal

No abstract provided.


Neutral Principles And Some First Amendment Problems, Robert H. Bork Oct 1971

Neutral Principles And Some First Amendment Problems, Robert H. Bork

Indiana Law Journal

The text of this article was delivered in the Spring of 1971 by Professor Bork at the Indiana University School of Law as part of the Addison C. Harriss lecture series.


The Development Of Constitutional Guarantees Of Liberty, By Roscoe Pound, Howard Jay Graham Jul 1958

The Development Of Constitutional Guarantees Of Liberty, By Roscoe Pound, Howard Jay Graham

Indiana Law Journal

No abstract provided.


The President: Office And Powers, By Edward S. Corwin, David Fellman Apr 1958

The President: Office And Powers, By Edward S. Corwin, David Fellman

Indiana Law Journal

No abstract provided.


Vagaries And Varieties In Constitutional Interpretation, By Thomas Reed Powell, Albert S. Abel Jan 1957

Vagaries And Varieties In Constitutional Interpretation, By Thomas Reed Powell, Albert S. Abel

Indiana Law Journal

No abstract provided.


Cases And Materials On Constitutional Law, By John P. Fran, Thomas Reed Powell Apr 1951

Cases And Materials On Constitutional Law, By John P. Fran, Thomas Reed Powell

Indiana Law Journal

No abstract provided.


The Constitution And Socio-Economic Change, By Henry Rottschaefer, Ben W. Palmer Jan 1950

The Constitution And Socio-Economic Change, By Henry Rottschaefer, Ben W. Palmer

Indiana Law Journal

No abstract provided.


Application Of The Self-Incrimination Clause To The Compulsory Production Of Books And Papers Required To Be Kept By Statute Apr 1949

Application Of The Self-Incrimination Clause To The Compulsory Production Of Books And Papers Required To Be Kept By Statute

Indiana Law Journal

Constitutional Law Note


Canon Of Restrictive Interpretation Repudiated Apr 1948

Canon Of Restrictive Interpretation Repudiated

Indiana Law Journal

Recent Cases: Constitutional Law


Civil Servants And The Right To Engage In Political Activity Apr 1947

Civil Servants And The Right To Engage In Political Activity

Indiana Law Journal

Notes and Comments: Constitutional Law


Indiana Gross Income Tax And The Commerce Clause Apr 1947

Indiana Gross Income Tax And The Commerce Clause

Indiana Law Journal

Notes and Comments: Constitutional Law


Right To Counsel In Criminal Law Apr 1947

Right To Counsel In Criminal Law

Indiana Law Journal

Notes and Comments: Constitutional Law


Suppression Of Coerced Confessions Apr 1947

Suppression Of Coerced Confessions

Indiana Law Journal

Notes and Comments: Constitutional Law


Legislative Abolition Of Remedies Jan 1947

Legislative Abolition Of Remedies

Indiana Law Journal

Notes and Comments: Constitutional Law


The Associated Press Case Jan 1946

The Associated Press Case

Indiana Law Journal

Notes and Comments: Constitutional Law


Restraints On Alienation Jan 1946

Restraints On Alienation

Indiana Law Journal

Notes and Comments: Constitutional Law


State Regulation And Enclaved Federal Territory Jul 1945

State Regulation And Enclaved Federal Territory

Indiana Law Journal

Notes and Comments: Constitutional Law


The Original Package Doctrine Jul 1945

The Original Package Doctrine

Indiana Law Journal

Notes and Comments: Constitutional Law


Insurance Declared Interstate Commerce Jan 1945

Insurance Declared Interstate Commerce

Indiana Law Journal

Notes and Comments: Constitutional Law


The Privilege Of A Negro Citizen To Vote In A Primary Jan 1945

The Privilege Of A Negro Citizen To Vote In A Primary

Indiana Law Journal

Notes and Comments: Constitutional Law