Law Commons^™

Levels Of Free Speech Scrutiny, Alexander Tsesis

Indiana Law Journal

Inconsistencies abound throughout current exacting, strict, and most exacting scrutiny doctrines. Formalism also runs throughout recent cases that have opportunistically relied on the First Amendment in matters peripherally concerned with core principles of free speech. Jurisprudence that relies on the exacting scrutiny standard remains significantly under-theorized. The uncertainty creates doctrinal flux that shifts from case-to-case. The same unexplained malleability appears in the most exacting scrutiny jurisprudence. The Court, moreover, sometimes refers to these two standards as equivalent to strict scrutiny. On the other hand, during the last decade, and most recently in 2021, various opinions have also used exacting scrutiny …

Compelled Speech And Doctrinal Fluidity, David Han

Indiana Law Journal

Even within the messy and complicated confines of First Amendment jurisprudence, compelled speech doctrine stands out in its complexity and conceptual murkiness— a state of affairs that has only been exacerbated by the Supreme Court’s decisions in NIFLA v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. This Essay observes that as the Court’s compelled speech jurisprudence has grown increasingly complex, it has also manifested a troubling degree of fluidity, where the doctrinal framework has grown so incoherent, imprecise, and unstable that it can be readily shaped by courts to plausibly justify a wide range of …

What's The Deal With Revlon?, Zachary Gubler

Indiana Law Journal

Under the Revlon doctrine, courts are to apply a higher level of scrutiny in certain takeover situations in an attempt to control potential conflicts of interest that might prejudice target shareholders. However, the doctrine has always had sufficient “play in the joints” that one might reasonably wonder whether it has much of an effect in practice on short-term shareholder returns. Additionally, in recent years, the trend in Delaware’s Revlon jurisprudence seems to be to defer to the target board as long as there are no glaring conflicts of interest. Taken together, these facts raise concern over the continued relevance of …

How To Fix Legal Scholarmush, Adam Kolber

Indiana Law Journal

Legal scholars often fail to distinguish descriptive claims about what the law is from normative claims about what it ought to be. The distinction couldn’t be more important, yet scholars frequently mix it up, leading them to mistake legal authority for moral authority, treat current law as a justification for itself, and generally use rhetorical strategies more appropriate for legal practice than scholarship. As a result, scholars sometimes talk past each other, generating not scholarship but “scholarmush.”

In recent years, legal scholarship has been criticized as too theoretical. When it comes to normative scholarship, however, the criticism is off the …

The Fourth Amendment At Home, Thomas P. Crocker

Indiana Law Journal

A refuge, a domain of personal privacy, and the seat of familial life, the home holds a special place in Fourth Amendment jurisprudence. Supreme Court opinions are replete with statements affirming the special status of the home. Fourth Amendment text places special emphasis on securing protections for the home in addition to persons, papers, and effects against unwarranted government intrusion. Beyond the Fourth Amendment, the home has a unique place within constitutional structure. The home receives privacy protections in addition to sheltering other constitutional values protected by the Due Process Clause and the First Amendment. For example, under the Due …

The Kavanaugh Court And The Schechter-To-Chevron Spectrum: How The New Supreme Court Will Make The Administrative State More Democratically Accountable, Justin Walker

Indiana Law Journal

In a typical year, Congress passes roughly 800 pages of law—that’s about a seveninch

stack of paper. But in the same year, federal administrative agencies promulgate

80,000 pages of regulations—which makes an eleven-foot paper pillar. This move

toward electorally unaccountable administrators deciding federal policy began in

1935, accelerated in the 1940s, and has peaked in the recent decades. Rather than

elected representatives, unelected bureaucrats increasingly make the vast majority

of the nation’s laws—a trend facilitated by the Supreme Court’s decisions in three

areas: delegation, deference, and independence.

This trend is about to be reversed. In the coming years, Congress will …

Sticks, Stones, And So-Called Judges: Why The Era Of Trump Necessitates Revisiting Presidential Influence On The Courts, Quinn W. Crowley

Indiana Law Journal

This Note will be primarily divided into three main sections. Part I of this Note will begin by discussing the importance of judicial independence in modern society and the role of elected officials in shaping the public perception of the courts. Additionally, as problems of judicial legitimacy are age-old and date back to America’s founding, Part I will include a brief discussion of an early clash between President Thomas Jefferson and the courts.

Parts II and III of this Note will seek to place President Trump’s conduct towards the judicial branch within the proper historical context. Part II examines the …

Do Corporations Have Religious Beliefs?, Jason Iuliano

Indiana Law Journal

Despite two hundred years of jurisprudence on the topic of corporate personhood, the Supreme Court has failed to endorse a philosophically defensible theory of the corporation. In this Article, I attempt to fill that void. Drawing upon the extensive philosophical literature on personhood and group agency, I argue that corporations qualify as persons in their own right. This leads me to answer the titular question with an emphatic yes. Contrary to how it first seems, that conclusion does not warrant granting expansive constitutional rights to corporations. It actually suggests the opposite. Using the Affordable Care Act’s contraception mandate as a …

The Material Basis Of Jurisprudence, Richard A. Posner

Indiana Law Journal

No abstract provided.

Sources Of Judicial Distrust Of Social Science Evidence: A Comparison Of Social Science And Jurisprudence, Constance R. Lindman

Indiana Law Journal

No abstract provided.

A Response To D.A.J. Richards' Defense Of Freewheeling Constitutional Adjudication, Raoul Berger

Indiana Law Journal

No abstract provided.

Professor Dworkin's Views On Legal Positivism, Genaro R. Carrio

Indiana Law Journal

This article was delivered on March 15 & 16, 1979, at the Indiana University School of Law, Bloomington, as a part of the Addison C. Harris lecture series.

Justice Story's Doctrine Of Judicial Supremacy And The Uncertain Search For A Neutral Principle In The Charles River Bridge Case, C. Lee Mangas

Indiana Law Journal

No abstract provided.

Antilaw Sentiments And Their Philosophical Foundations, Edgar Bodenheimer

Indiana Law Journal

No abstract provided.

Law And Today's Crisis-Situations, Thomas E. Davitt

Indiana Law Journal

No abstract provided.

The Rule Of Just Law, William B. Harvey

Indiana Law Journal

Speech delivered on Law Day, April 30, 1966, at Bloomington, Indiana.

The Morality Of Law, By Lon L. Fuller, Edwin W. Tucker

Indiana Law Journal

No abstract provided.

On Law And Justice, By Alf Ross, Samuel I. Shuman

Indiana Law Journal

No abstract provided.

The Moral Foundation Of Democracy, By John H. Hallowell, Francis D. Wormuth

Indiana Law Journal

No abstract provided.

Process And Pattern: The Search For Standards In The Law, Charles Edward Wyzanski Jr.

Indiana Law Journal

An address at the Fiftieth Anniversary of the Graduate Schools of Indiana University, April 30, 1954.

The Jurisprudence Of Thomas Jefferson, L. K. Caldwell

Indiana Law Journal

No abstract provided.

Law As A Science, George W. Goble

Indiana Law Journal

Reprinted from The Scientific Monthly, with the permission of that periodical.

A Legal Gospel For An Industrial Age, Anan Raymond

Indiana Law Journal

An address delivered before the Indiana State Bar Association at Lafayette, Indiana, July 9, 1931.