Constitutional Law Commons^™

Regulating The Commander In Chief: Some Theories, Saikrishna Prakash

Indiana Law Journal

Symposium: War, Terrorism and Torture: Limits on Presidential Power in the 21st Century. Convened by the American Constitution Society for Law and Policy and the Indiana University School of Law- Bloomington, prominent legal scholars, human rights advocates and government lawyers gathered in Bloomington on October 7, 2005.

The War Powers Outside The Courts, William Michael Treanor

Indiana Law Journal

Symposium: War, Terrorism and Torture: Limits on Presidential Power in the 21st Century. Convened by the American Constitution Society for Law and Policy and the Indiana University School of Law- Bloomington, prominent legal scholars, human rights advocates and government lawyers gathered in Bloomington on October 7, 2005.

The National Security Agency's Domestic Spying Program: Framing The Debate (Including Relevant Documents), David Cole, Martin S. Lederman

Indiana Law Journal

No abstract provided.

The Executive And The Avoidance Canon, H. Jefferson Powell

Indiana Law Journal

Symposium: War, Terrorism and Torture: Limits on Presidential Power in the 21st Century. Convened by the American Constitution Society for Law and Policy and the Indiana University School of Law- Bloomington, prominent legal scholars, human rights advocates and government lawyers gathered in Bloomington on October 7, 2005.

Unitariness And Myopia: The Executive Branch, Legal Process, And Torture, Cornelia Pillard

Indiana Law Journal

Symposium: War, Terrorism and Torture: Limits on Presidential Power in the 21st Century. Convened by the American Constitution Society for Law and Policy and the Indiana University School of Law- Bloomington, prominent legal scholars, human rights advocates and government lawyers gathered in Bloomington on October 7, 2005.

Loaded Dice And Other Problems: A Further Reflection On The Statutory Commander In Chief, Christopher H. Schroeder

Indiana Law Journal

Symposium: War, Terrorism and Torture: Limits on Presidential Power in the 21st Century. Convened by the American Constitution Society for Law and Policy and the Indiana University School of Law- Bloomington, prominent legal scholars, human rights advocates and government lawyers gathered in Bloomington on October 7, 2005.

Religious Expression And Symbolism In The American Constitutional Tradition: Government Neutrality, But Not Indifference, Daniel O. Conkle

Indiana Journal of Global Legal Studies

In this article, I describe and analyze three principles of First Amendment doctrine. First, the Establishment Clause generally forbids governmental expression that has the purpose or effect of promoting or endorsing religion. Second, and conversely, private religious expression is broadly defined and is strongly protected by the Free Speech Clause. Third, as an implicit exception to the first principle, the government itself is sometimes permitted to engage in expression that seemingly does promote and endorse religion, but only when the expression is noncoercive, nonsectarian, and embedded within (or at least in harmony with) longstanding historical tradition. Comparing these three principles …

Secularization, Religiosity, And The United States Constitution, Christopher L. Eisgruber

Indiana Journal of Global Legal Studies

This article draws upon leading works in the sociology of religion to assess what I shall call "the secularization claim" regarding the United States. It endeavors, in particular to clarify the possible meanings of "secularization,"and then to use these conceptual refinements to examine what sort of evidence exists that the United States has been secularized. Though it is not possible to falsify every version of the secularization claim, there is little evidence to support it, especially in its most prominent and politically relevant variations. The article then goes on to offer a preliminary analysis of to what extent, if any, …

Church And State In The United States: Competing Conceptions And Historic Changes, Douglas Laycock

Indiana Journal of Global Legal Studies

This article, originally written for a French audience, attempts to explain the American law of church and state from the ground up, assuming no background information. Basic legal provisions are explained. The relevant American history is periodized in three alignments of religious conflict: Protestant-Protestant, Protestant-Catholic, and religious-secular. Some frequently heard concepts are explained, distinguished, and related to each other-separation, voluntarism, equality, formal and substantive neutrality, liberty, toleration, and state action. Finally, the principal disputes over religious liberty are assessed in three broad areas-funding of religiously affiliated activities, religious speech (with and without government sponsorship), and regulation of religious practice. These …

Why Religion In Politics Does Not Violate La Conception Américaine De La Laïcité, Michael J. Perry

Indiana Journal of Global Legal Studies

La conception Am6ricaine de la Laĭcité consists principally of a constitutional norm-the nonestablishment norm-and of the laW that the U.S. Supreme Court has developed in the course of enforcing the norm. The nonestablishment norm forbids government-both the national government and state government-to "establish" religion. American laYcit6 also consists of what we may call "the morality of liberal democracy. " My aim in this essay is to explain why religion in politics does not violate American laYcit6; more specifically, my aim is to explain why political reliance on religiously grounded morality violates neither the nonestablishment norm nor the morality of liberal …

Laïcité In The United States Or The Separation Of Church And State In Pluralist Society, Elisabeth Zoller

Indiana Journal of Global Legal Studies

No abstract provided.

Reconsidering Reparations, Alfred L. Brophy

Indiana Law Journal

Eric Posner's and Adrian Vermeule's essay, Reparations for Slavery and Other Historic Injustices, seeks a framework for defining reparations and evaluating reparations claims. It explores a limited set of past reparations, as well as the connections between those asked to pay reparations and past wrongdoers, and the connections between those receiving reparations and those injured in the past. Posner and Vermeule use that framework to evaluate the morality of reparations and the legal problems that arise in implementing reparations proposals.

This Essay takes up the Posner-Vermeule analysis at several points. It challenges their limited definition of reparations and their limited …

Separation Of Church And State In The United States: Lost In Translation, Carol J. Greenhouse

Indiana Journal of Global Legal Studies

In this article, the absence of an American equivalent to the French word laĭcité becomes an ethnographic opening to an exploration of the church-state divide in the U.S. context. Drawing on classic social theory, sociological accounts, and current events, I suggest that the constitutional separation of church and state-in addition to whatever it may mean in legal terms-also expresses a cultural proposition. Specifically, the separation of church and state posits a dual role for local communities as both the source of federal power (through representative government) and the foundation of its moral authority. The latter role can be sustained only …

Creation Of The Media: A Review And Introspective, Shannon M. Heim

Federal Communications Law Journal

A review of Paul Starr's Creation of the Media, Basic Books 2004. This review discusses the historical treatment that Starr presents in his narrative of modern communications, particularly focusing on the "constitutive moments" in the growth of the media.

Private Eyes Are Watching You: With The Implementation Of The E-911 Mandate, Who Will Watch Every Move You Make?, Geoffrey D. Smith

Federal Communications Law Journal

The FCC's E-911 mandate, which will ensure that emergency operators automatically receive a caller's location information, should help save lives. However, privacy advocates have expressed concern over the potential for wireless carriers, the government, and third parties to collect and store personal information. Congress has addressed these concerns with legislation, but privacy advocates still worry that consumers are not adequately protected. This Note addresses this concern and argues that in order to ensure consumer protection, additions are needed to section 222 of the Telecommunications Act of 1996. The Note discusses the importance of individual privacy and balances it against the …

Cable Operators' Fifth Amendment Claims Applied To Digital Must-Carry, Nissa Laughner, Justin Brown

Federal Communications Law Journal

This Article addresses the legal and policy implications of property rights in the digital must-carry issue. The Authors review must-carry regulations, present a traditional Fifth Amendment analysis of must-carry, address free speech implications of that property-based analysis, and show how property-based claims might influence future cable regulations and policies. The Authors conclude that while the Fifth Amendment claims are unlikely to succeed legally, they do contain significant rhetorical power that can help shift public policy in ways favorable to the cable industry.

Taking The Initiative: Political Parties, Primary Elections, And The Constitutional Guarantee Of Republican Governance, Gavin M. Rose

Indiana Law Journal

No abstract provided.

Davey's Deviant Discretion: An Incorporated Establishment Clause Should Require The State To Maintain Funding Neutrality, Nina S. Schultz

Indiana Law Journal

No abstract provided.

Rethinking Regulation Of Advertising Aimed At Children, William A. Ramsey

Federal Communications Law Journal

In 1990, Congress passed the Children's Television Act ("CTA"), which directed the FCC to establish standards for broadcasters regarding the amount of children's programming aired and to enforce limits on the amount of commercial time aired during children's programming. The limits are meant to protect children from various harms caused by advertising aimed at children. This Note examines the constitutionality and the effectiveness of these commercial limits. The Note concludes that while the CTA's commercial limits are probably constitutional under the Court's test for regulations of commercial speech, the limits do not provide children with adequate protection from the harms …

The Use And Misuse Of Comparative Constitutional Law (The George P. Smith Lecture In International Law), Cheryl Saunders

Indiana Journal of Global Legal Studies

This article examines the extent and nature of the use of foreign law in constitutional adjudication in common law systems outside the United States, with special reference to Australia. Demonstrating that the courts of other common law jurisdictions use foreign case law readily, naturally, and for a variety of purposes, the article reaches two broad conclusions: (1) as a generalization, other common law countries do not share the concern about the legitimacy of comparative precedents that manifests itself in the United States, and (2) as a consequence, other common law countries necessarily share with the United States an interest in …

Theocratic Constitutionalism: An Introduction To A New Global Legal Ordering, Larry Catá Backer

Indiana Journal of Global Legal Studies

The twentieth century has seen a fundamental shift in the ways in which constitutions are understood. By the middle of the twentieth century, a new sort of constitutionalism emerged, rejecting the idea of the legitimacy of every form of political selfconstitution. The central assumptions of this new constitutionalism were grounded in the belief that not all constitutions were legitimate, and that legitimate constitutions shared a number of universal common characteristics. These common characteristics were both procedural (against arbitrary use of state power) and substantive (limiting the sorts of policy choices states could make in constituting its government and exercising governance …

Toward A Limited Right Of Access To Jury Deliberations, Torrence Lewis

Federal Communications Law Journal

Jury deliberations receive extensive protection from public examination. These protections make jury deliberations much less accessible to the public than most other governmental deliberations. This Comment examines the constitutional, common law, and statutory protections for jury deliberations and the dangers that these protections seek to prevent. The Author argues that a limited post-verdict right of access to jury deliberations could restore public faith in the jury and could eventually improve the quality of jury deliberations. The Author suggests a possible framework that would provide the public with a limited right of access and still address the primary concerns that led …

Sovereignty, Not Due Process: Personal Jurisdiction Over Nonresident, Alien Defendants, Austen L. Parrish

Articles by Maurer Faculty

The Due Process Clause with its focus on a defendant's liberty interest has become the key, if not only, limitation on a court's exercise of personal jurisdiction. This due process jurisdictional limitation is universally assumed to apply with equal force to alien defendants as to domestic defendants. With few exceptions, scholars do not distinguish between the two. Neither do the courts. Countless cases assume that foreigners have all the rights of United States citizens to object to extraterritorial assertions of personal jurisdiction.

But is this assumption sound? This Article explores the uncritical assumption that the same due process considerations apply …

Three Theories Of Substantive Due Process, Daniel O. Conkle

Articles by Maurer Faculty

Substantive due process is in serious disarray, with the Supreme Court simultaneously embracing two, and perhaps three, competing and inconsistent theories of decisionmaking. The first two theories, historical tradition and reasoned judgment, have explicit and continuing support in the Court's decisions. Under the theory of historical tradition, substantive due process affords presumptive constitutional protection only to liberties that are "deeply rooted in this Nation's history and tradition." By contrast, the theory of reasoned judgment is far more expansive, permitting the Court to identify rights independently, through a process that amounts to philosophical analysis or political-moral reasoning. The third theory, evolving …

Book Review. The Supreme Court And Religion In American Life, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.

Preclearance, Discrimination, And The Department Of Justice: The Case Of South Carolina, Luis Fuentes-Rohwer, Guy-Uriel E. Charles

Articles by Maurer Faculty

No abstract provided.

Federalism, The Commerce Clause, And The Constitutionality Of The Unborn Victims Of Violence Act Of 2004, Ryan R. Wilmering

Indiana Law Journal

No abstract provided.

American Constitutional Fantasies: Escape From Difference Through Escape From Government, David C. Williams

Indiana Journal of Global Legal Studies

Back to Government?: The Pluralistic Deficit in the Decisionmaking Processes and Before the Courts, Symposium. University of Trento, Italy, June 11-12, 2004.

The Treaty Establishing A Constitution For Europe And The Democratic Legitimacy Of The European Union, Elisabeth Zoller

Indiana Journal of Global Legal Studies

No abstract provided.

Back To Government?: The Pluralistic Deficit In The Decisionmaking Process And Before The Courts, Fulvio Cortese, Marco Dani, Francesco Palermo

Indiana Journal of Global Legal Studies

Back to Government?: The Pluralistic Deficit in the Decisionmaking Processes and Before the Courts, Symposium. University of Trento, Italy, June 11-12, 2004.