Constitutional Law Commons^™

Defining Fetal Life: An Establishment Clause Analysis Of Religiously Motivated Informed Consent Provisions, Justin R. Olson

Indiana Law Journal

No abstract provided.

The Sins Of Hosanna-Tabor, Leslie Griffin

Indiana Law Journal

The Supreme Court has lost sight of individual religious freedom. In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Court for the first time recognized the ministerial exception, a court-created doctrine that holds that the First Amendment requires the dismissal of many employment discrimination cases against religious employers. The Court ruled unanimously that Cheryl Perich, an elementary school teacher who was fired after she tried to return to school from disability leave, could not pursue an antidiscrimination lawsuit against her employer.

This Article criticizes Hosanna-Tabor as a profound misinterpretation of the First Amendment. The Court mistakenly protected religious institutions’ …

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 …

The False Promise Of The Converse-1983 Action, John F. Preis

Indiana Law Journal

The federal government is out of control. At least that’s what many states will tell you. Not only is the federal government passing patently unconstitutional legislation, but its street-level officers are ignoring citizens’ constitutional rights. How can states stop this federal juggernaut? Many are advocating a “repeal amendment,” whereby two-thirds of the states could vote to repeal federal legislation. But the repeal amendment will only address unconstitutional legislation, not unconstitutional actions. States can’t repeal a stop-and-frisk that occurred last Thursday. States might, however, enact a so-called “converse-1983” action. The idea for converse-1983 laws has been around for some time but …

Standing Lessons: What We Can Learn When Conservative Plaintiffs Lose Under Article Iii Standing Doctrine, Heather Elliott

Indiana Law Journal

The Supreme Court’s Article III standing doctrine has plagued liberal groups for nearly forty years. Recently, however, the doctrine has blocked a number of conservative lawsuits opposing gay marriage, the 2010 health care law, and the expansion of federal funding for stem cell research.

What can we learn from these cases? Because contemporary criticisms of standing doctrine have usually come from the left and defenses from the right, it is commonplace to associate arguments for broad standing with left-wing political agendas.

But, as some scholars have shown, a version of narrow standing helped liberals protect New Deal legislation in the …

Equal Citizenship And The Individual Right To Vote, Jospeh Fishkin

Indiana Law Journal

An emerging consensus among election law scholars urges courts to break out of “the stagnant discourse of individual rights and competing state interests” and instead adopt a jurisprudence of “structural” democratic values that sidelines individual rights. This structuralist approach won out in the great “rightsstructure” debate in election law, and came to dominate the field, during a period in which the main controversies—vote dilution, gerrymandering, ballot access, campaign finance—were all ones in which the structuralist move was illuminating. However, structuralism is now causing both scholars and courts to evaluate the new wave of vote denial controversies, over such issues as …

Retail Rebellion And The Second Amendment, Darrell A. H. Miller

Indiana Law Journal

When, if ever, is there a Second Amendment right to kill a cop? This piece seeks to answer that question. In District of Columbia v. Heller, the Supreme Court held that the Second Amendment codifies a natural right to keep and bear arms for selfdefense. That right to self-defense extends to both private and public threats, including self-defense against agents of a tyrannical government. Moreover, the right is individual. Individuals―not just communities―have the right to protect themselves from public violence. Individuals―not just militias―have the right to defend themselves against tyranny. In McDonald v. City of Chicago, the Court went further, …

The Framers' Intent: John Adams, His Era, And The Fourth Amendment, Thomas K. Clancy

Indiana Law Journal

No abstract provided.

The Boundaries Of Privacy Harm, M. Ryan Calo

Indiana Law Journal

Just as a burn is an injury caused by heat, so is privacy harm a unique injury with specific boundaries and characteristics. This Essay describes privacy harm as falling into two related categories. The subjective category of privacy harm is the perception of unwanted observation. This category describes unwelcome mental states—anxiety, embarrassment, fear—that stem from the belief that one is being watched or monitored. Examples of subjective privacy harms include everything from a landlord eavesdropping on his tenants to generalized government surveillance.

The objective category of privacy harm is the unanticipated or coerced use of information concerning a person against …

Re-Solidifying Racial Bloc Voting: Empirics And Legal Doctrine In The Melting Pot, D. James Greiner

Indiana Law Journal

Racial bloc voting is the central concept in judicial regulation of redistricting. For the past several decades, the definition and proof of this concept have depended on two premises: that polities can be conceptualized in biracial terms and that nearly perfect information on voting patterns can be inexpensively obtained from simple statistical methods. In fact, however, neither premise has been true for some time, as the nation has become multiracial and allegations have increased that Caucasians vote less monolithically than before, with both assertions imposing severe stress on the simple statistical methods previously used to assess voting patterns. In this …

First Amendment Investigations And The Inescapable Pragmatism Of The Common Law Of Free Speech, Lawrence Rosenthal

Indiana Law Journal

No abstract provided.

The Costs Of Heightened Pleading, Alexander A. Reinert

Indiana Law Journal

In Conley v. Gibson, the Supreme Court announced its commitment to a liberal pleading regime in federal civil cases, and for decades thereafter was steadfast in resisting ad hoc heightened pleading rules adopted by lower courts. Thus, from 1957 until a few years ago, most litigants could count on surviving a motion to dismiss a complaint for failure to state a claim so long as their pleading provided some minimal notice to the defendant of the nature of their claim. Enter Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly. Iqbal and Twombly, by many accounts, two-stepped the Court from …

Signing Unconstitutional Laws, William Baude

Indiana Law Journal

It has become fairly common for Presidents to sign laws that they think are unconstitutional, at least in part. Some scholars argue that this is unconstitutional. Others defend it, but on pragmatic grounds, as if one cannot afford to be a constitutional formalist in today’s government.

Both sides are wrong. In a wide range of cases, there is nothing wrong with signing unconstitutional laws. Indeed, it is required. Yet the President must exercise this power responsibly. He must have other constitutional duties that justify signing the remainder of the bill into law, and he must be prepared to use his …

Brilliant Disguise: An Empirical Analysis Of A Social Experiment Banning Affirmative Action, Deirdre M. Bowen

Indiana Law Journal

No abstract provided.

On Disguises, Tokens, And Affirmative Action Policies, Mark Strasser

Indiana Law Journal

No abstract provided.

Perspective And Point Of View On Affirmative Action, Kevin D. Brown

Indiana Law Journal

No abstract provided.

Frames Of Injustice: The Bias We Overlook, Adam Benforado

Indiana Law Journal

The Cultural Cognition Project (CCP) at Yale Law School and the Project on Law and Mind Sciences (PLMS) at Harvard Law School draw on similar research and share a similar goal of uncovering the dynamics that shape risk perceptions, policy beliefs, and attributions underlying our laws and legal theories. Nonetheless, the projects have failed to engage one another in a substantial way. This Article attempts to bridge that gap by demonstrating how the approach taken by PLMS scholars can crucially enrich CCP scholarship. As a demonstration, this Article engages the case of Scott v. Harris, 550 US. 372 (2007), the …

Entitled To Be Heard: Improving Evidence-Based Policy Making Through Audience And Public Reason, Will Rhee

Indiana Law Journal

No abstract provided.

Keep Off The Grass!: An Alternative Approach To The Gun Control Debate, Lance Lindeen

Indiana Law Journal

No abstract provided.

The Devil Is In The Lack Of Details, Ann M. Killenbeck

Indiana Law Journal

No abstract provided.

Piercing The Brilliant Veil: Two Stories Of American Racism, Deborah Jones Merritt

Indiana Law Journal

No abstract provided.

The Associated Dangers Of "Brilliant Disguises," Color-Blind Constitutionalism, And Postracial Rhetoric, André Douglas Pond Cummings

Indiana Law Journal

No abstract provided.

The Plea Jury, Laura I. Appleman

Indiana Law Journal

This Article argues that it is time to reform the much-criticized plea-bargaining process by restoring the Sixth Amendment jury trial right back to criminal adjudication. My proposal would incorporate the local community into the guilty-plea procedure through the use of a plea jury, thus solving a multitude of problems within the criminal justice system. In a plea jury, a lay panel of citizens would listen to the defendant's allocution and determine the acceptability of the plea and sentence, reinvigorating the community's right to determine punishment for offenders. My goal is to return the Sixth Amendment community-jury right to its proper …

Regulating Student Speech: Suppression Versus Punishment, Emily Gold Waldman

Indiana Law Journal

No abstract provided.

The Suppression Of A Saggin' Expression: Exploring The "Saggy Pants" Style Within A First Amendment Context, Onika K. Williams

Indiana Law Journal

No abstract provided.

A Fourth Amendment For The Poor Alone: Subconstitutional Status And The Myth Of The Inviolate Home, Jordan C. Budd

Indiana Law Journal

For much of our nation's history, the poor have faced pervasive discrimination in the exercise of fundamental rights. Nowhere has the impairment been more severe than in the area of privacy. This Article considers the enduring legacy of this tradition with respect to the Fourth Amendment right to domestic privacy. Far from a matter of receding historical interest, the diminution of the poor's right to privacy has accelerated in recent years and now represents a powerful theme within the jurisprudence of poverty. Triggering this development has been a series of challenges to aggressive administrative practices adopted by localities in the …

Dynamic Federalism And Patent Law Reform, Xuan-Thao Nguyen

Indiana Law Journal

Patent law is federal law, and the normative approach to patent reform has been top down, looking to Congress and the Supreme Court for changes to the broken and complex patent system. The normative approach thus far has not yielded satisfactory results. This Article challenges the static approach to patent reform and embraces the dynamic-federalism approach that patent reform can be an overlapping of both national and local efforts. Patent reform at the local level is essential as locales can serve as laboratories for changes, vertically compete with national government to reform certain areas of the patent system, and become …

Coercing Voluntariness, Wadie E. Said

Indiana Law Journal

No abstract provided.

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

"Knock And Talk" And The Fourth Amendment, Craig M. Bradley

Indiana Law Journal

No abstract provided.