Constitutional Law Commons^™

What Constitution Does Europe Need? The House That Giscard Built: Constitutional Rooms With A View, Paul Craig

Articles by Maurer Faculty

This paper presents an overview of key features of the Draft Constitution. The analysis is divided into two broad parts. There is an horizontal perspective which analyses the regime of power, control and accountability within the Draft Constitution. The discussion within this section focuses more specifically on the inter-institutional division of power, the Charter of Rights and the provisions concerning the Community courts. The second part of the paper considers the Draft Constitution from a vertical perspective, viz the impact of the Constitution on the relations between the EU and the Member States. The more specific topics discussed within this …

The Middle Class Fourth Amendment, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.

Architexture, Akhil Reed Amar

Indiana Law Journal

Addison C. Harris Lecture, March 20, 2002

Rehnquist's Vietnam: Constitutional Separatism And The Stealth Advance Of Martial Law, Diane H. Mazur

Indiana Law Journal

No abstract provided.

The Right Of The People To Keep And Bear Arms Shall Not Be Litigated Away: Constitutional Implications Of Municipal Lawsuits Against The Gun Industry, William L. Mccoskey

Indiana Law Journal

No abstract provided.

Street Legal: The Court Affords Police Constitutional Carte Blanche, Wayne A. Logan

Indiana Law Journal

No abstract provided.

The Supreme Court Takes On The First Amendment Privacy Conflict And Stumbles: Bartnicki V. Vopper, The Wiretapping Act, And The Notion Of Unlawfully Obtained Information, James M. Hilmert

Indiana Law Journal

No abstract provided.

Beyond The Zero-Sum Game: Toward Title Vii Protection For Intergroup Solidarity, Noah D. Zatz

Indiana Law Journal

No abstract provided.

Constitutional Issues In Information Privacy, Fred H. Cate, Robert E. Litan

Articles by Maurer Faculty

The U.S. Constitution has been largely ignored in the recent flurry of privacy laws and regulations designed to protect personal information from incursion by the private sector, despite the fact that many of these enactments and efforts to enforce them significantly implicate the First Amendment. Questions about the role of the Constitution have assumed new importance in the aftermath of the September 11 terrorist attacks on the World Trade Center and the Pentagon. Efforts to identify and bring to justice the perpetrators and to protect against future terrorist attacks, while threatening to weaken constitutional protections against government intrusions into personal …

The Dynamic Judicial Opinion, William D. Popkin

Articles by Maurer Faculty

Eskridge's article on Dynamic Statutory Interpretation advances an aggressively pragmatic theory of interpretation but has had more influence among academics than judges because of a failure to attend to the problems of writing a candid, pragmatic and dynamic judicial opinion. This article argues that, although not free from doubt, a candid judicial opinion is preferable, and discusses how to write such an opinion - suggesting that judges rely on the "intent of the statute," not legislative intent; and adopt a personal/exploratory style in presenting their views.

Principles For Protecting Privacy, Fred H. Cate

Articles by Maurer Faculty

This article addresses health privacy in the broader context of other areas of recent privacy activity, in an effort to discover what people should have learned in trying to identify those principles that should undergrid regulatory efforts to protect privacy. Increasingly, the dominant trend in recent and pending privacy legislation is to invest consumers with near absolute control over information in the marketplace. - irrespective of whether the information is, or could be, used to cause harm. The Health Insurance Portability and Accountability Act privacy rules wholly ignore the concept of harm and the constitutional requirement of targeting restriction on …

Baker's Promise, Equal Protection, And The Modern Redistricting Revolution: A Plea For Rationality, Luis Fuentes-Rohwer

Articles by Maurer Faculty

The conventional wisdom contends that Baker v. Carr did not set down a standard for lower courts to follow. This Article responds to this position. It reaches three conclusions. First, it argues the implicit promise of Baker v. Carr pointed toward a loose, flexible rationality standard for deciding redistricting controversies. Under this approach, states were given much room to enact redistricting plans in accordance to their states' particular needs. Second, the lower courts applied precisely this standard in litigation in the wake of Baker, and did so quite capably. This conclusion responds to those who exhort the imposition of a …

Deciding When Hate Is A Crime: The First Amendment, Police Detectives, And The Identification Of Hate Crime, Jeannine Bell

Articles by Maurer Faculty

This Article adds to the debate a story of how hate crime law is enforced, based on the experiences of the police detectives who are required to enforce hate crime law. Part I of this Article provides a brief description of hate crime laws and argues that the police play an important role in the determination of how hate crime law is enforced and ultimately, whether defendants’ First Amendment rights will be respected. Part II describes critics’ concerns about defendants’ First Amendment rights and the narrow constitutional line that enforcers of hate crime law must walk between enforcing hate crime …

The Public Interest Standard: Is It Too Indeterminate To Be Constitutional?, Randolph J. May

Federal Communications Law Journal

This Article argues that the congressional delegation of public interest authority to the FCC likely violates the nondelegation doctrine that inheres in the constitutional separation of powers scheme and that, even if the courts do not hold the public interest delegation unconstitutional, Congress should revise the Communications Act to set forth more specific guidance for the FCC. In today’s environment of “convergence,” in which competition is flourishing across communications sectors, Congress should not shirk its responsibility to establish fundamental policy for an industry that contributes so much to the overall health of our economy. This Article argues that Congress should …

A Conservative Defense Of Romer V. Evans, Dale Carpenter

Indiana Law Journal

No abstract provided.

Filth, Filtering, And The First Amendment: Ruminations On Public Libraries’ Use Of Internet Filtering Software, Bernard W. Bell

Federal Communications Law Journal

Traditionally, whenever the government has sought to regulate speech, analysis of its action focused on conventional issues, such as the type of forum involved, whether the government acted in a regulatory or a proprietary role, and whether the regulation could be defined as a prior restraint. With the advent of the Internet and the opportunity for the widespread dissemination of viewpoints, however, new issues have arisen. This Article focuses on the complex questions public libraries face when filtering material, usually of a sexually explicit nature, from the public using filtering software. This Article contends that public libraries require a unique …

Challenges To Racial Redistricting In The New Millennium: Hunt V. Cromartie As A Case Study, Luis Fuentes-Rohwer, Guy-Uriel E. Charles

Articles by Maurer Faculty

No abstract provided.

Are We Buyers Or Hosts? A Memetic Approach To The First Amendment, Jeffrey E. Stake

Articles by Maurer Faculty

The First Amendment is often analyzed using the metaphor of the marketplace of ideas. Making use of memetic analysis, this article suggests that ideas should not be treated as inert products that we choose but as living things that sometimes exert some influence over their environment. Some of the ideas are more adept at surviving than others, and the ones that survive will not necessarily be good for humans. To account for the ability of some memes to replicate dangerously, the First Amendment should be read to allow governments to punish a speaker who advocates or threatens physical injury (other …

The Free Exercise Clause: How Redundant, And Why?, Daniel O. Conkle

Articles by Maurer Faculty

This article responds to Professor Mark Tushnet's article, "The Redundant Free Exercise Clause?" Although its analysis and specific conclusions are distinctive, the article reaches a general conclusion similar to Tushnet's - namely, that the contemporary Free Exercise Clause is largely redundant, in that it provides little protection that is not afforded independently by other First Amendment doctrines. The article first contends that the core principle of the contemporary Free Exercise Clause, the nondiscrimination requirement of Employment Division v. Smith, might be subsumed, perhaps entirely, within the free speech principle that disfavors content discrimination. To that extent, the Free Exercise Clause …

The Electoral College, The Right To Vote, And Our Federalism: A Comment On A Lasting Institution, Luis Fuentes-Rohwer, Guy-Uriel E. Charles

Articles by Maurer Faculty

The Electoral College has been subject to a constant barrage of criticism. This raises an obvious question: how has the College managed to survive despite its lack of popularity, its opacity and its generally controversial nature?

Commentators look to the wisdom and staying power of the founding generation as well as to the force of history and tradition. In this Article, we look carefully at a third possibility. That is, we look to the foundation of our political structure and the nature of our democratic commitments.

In this vein, we are particularly intrigued by the question of electoral legitimacy. To …

Is Payne Defensible?: The Constitutionality Of Admitting Victim-Impact Evidence At Capital Sentencing Hearings, Joshua D. Greenberg

Indiana Law Journal

No abstract provided.

Harmonic Convergence? Constitutional Criminal Procedure In An International Context, Diane Marie Amann

Indiana Law Journal

No abstract provided.

"The Mis-Characterization Of The Negro": A Race Critique Of The Prior Conviction Impeachment Rule, Montrè D. Carodine

Indiana Law Journal

The election of Barack Obama as the nation's first Black President was a watershed moment with respect to race relations in the United States. Obama's election removed what to many seemed a nearly insurmountable racial barrier. Yet as he transitions into his historic role and his family becomes the first Black occupants of the White House, scores of Blacks are housed in jails and prisons across the country. The mass incarceration of Blacks, among other serious issues, demonstrates that race still matters in the United States. As then-presidential candidate Obama acknowledged in the speech that many viewed to be pivotal …

Who’S Taking Whom: Some Comments And Evidence On The Constitutionality Of Telric, David Gabel, David I. Rosenbaum

Federal Communications Law Journal

The FCC requires that the price of unbundled network elements be equal to the total element long-run incremental cost of production plus a reasonable contribution to common and joint costs. This pricing standard has the potential of making the telecommunications market more competitive. TELRIC prices, however, are set independently of historic costs and therefore may not compensate investors for incurred costs. Hence, incumbent local exchange carriers have been fighting its implementation. In all probability, the U.S. Supreme Court will become involved in the debate over its adoption. The Supreme Court has looked at changes in valuation methods in the past. …

The Path Of American Religious Liberty: From The Original Theology To Formal Neutrality And An Uncertain Future, Daniel O. Conkle

Indiana Law Journal

Symposium: Religious Liberty at the Dawn of a New Millennium held at Indiana University School of Law-Bloomington on April 9, 1999.

Tort Liability, Religious Entities, And The Decline Of Constitutional Protection, Scott C. Idleman

Indiana Law Journal

Symposium: Religious Liberty at the Dawn of a New Millennium held at Indiana University School of Law-Bloomington on April 9, 1999.

Religion And Education: Whither The Establishment Clause?, Martha Mccarthy

Indiana Law Journal

Symposium: Religious Liberty at the Dawn of a New Millennium held at Indiana University School of Law-Bloomington on April 9, 1999.

Vouchers And Beyond: The Individual As Causative Agent In Establishment Clause Jurisprudence, Laura S. Underkuffler

Indiana Law Journal

Symposium: Religious Liberty at the Dawn of a New Millennium held at Indiana University School of Law-Bloomington on April 9, 1999.

Equal Protection Challenges To The Use Of Racial Classifications To Promote Integrated Public Elementary And Secondary Student Enrollments, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

The Constitutionality Of Racial Classifications In Public School Admissions, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.