Legal History Commons^™

The Role Of Accountability In Preserving Judicial Independence: Examining The Ethical Infrastructure Of The Federal Judicial Workplace, Susan Saab Fortney

Faculty Scholarship

After news reports of sexual harassment allegations involving federal judges, U.S. Supreme Court Chief Justice John Roberts asked the Director of the Administrative Office of the U.S. Courts to assemble a working group to address concerns related to misconduct in the federal judicial workplace. Following the working group’s report, the judiciary adopted recommendations relating to discrimination and harassment in the federal judiciary. Using the ethical infrastructure framework, this article reviews what changes have been made and what is missing. It explains how the steps taken largely focus on formal aspects of communicating and monitoring standards of conduct. Notably missing are …

Populist Secularism, Seval Yildirim

Journal Articles

This article argues that in the context of a developing democracy, the rise of religiously oriented parties should be viewed contextually as part of an ongoing process of democratic negotiation and consolidation. Using Turkey as a case study, this article argues that religion and secularism are best viewed as parts of a symbiotic relationship, informing each other’s identity, and defining characteristics through an ongoing process of negotiation.

The article discusses commonly used concepts relevant to secularism in general and argues for the need to distinguish between the secular, secularism, and secularization as a governance project. Through a historical survey of …

Constitutional Federalism And The Nature Of The Union, Anthony J. Bellia Jr., Bradford R. Clark

William & Mary Law Review

Federalism is an essential feature of the Constitution’s design and structure, but the Constitution does not spell out every respective authority of the federal government and the States in precise detail. This omission has led some observers to embrace broad—if not unlimited—federal power and reject certain longstanding federalism doctrines—such as state sovereign immunity, the anti-commandeering doctrine, and the equal sovereignty of the States. The objection to such doctrines is that the Constitution does not affirmatively grant States these sovereign rights and powers. This charge overlooks long-forgotten background context essential to faithful interpretation of the Constitution. The former British Colonies in …

Public Men's Rooms And The Legal Construction Of Gender And Privacy, Steven J. Macias

University of Cincinnati Law Review

This Article examines how the law is complicit in educating and socializing children into the cultural practices of gender and privacy. It accomplishes this by analyzing case law that involves minors and men’s public bathrooms. The men’s room is a place rife with social ambiguity, an ambiguity that has come to a head in recent transgender school bathroom cases. Although this Article is primarily concerned with the men’s bathroom as an important legal site in the development of gender and privacy for all youth, it discusses transgender (trans) rights cases as presenting the most fundamental challenge to the hegemonic logic …

Confronting The War On International Law In The United States, Rebecca Ingber

Online Publications

Harold Hongju Koh’s The National Security Constitution in the 21st Century is a code red threat assessment of the state of public law in America today. True to Koh’s nature, he does not leave us without hope; rather he devotes a sizeable portion of the book to calls for reform, from the legal frameworks governing war powers and intelligence to the division of labor in the national security legal bureaucracy plodding away within the deepest (secure) chambers of the executive branch itself.

Searching For The Radical Constitution, Robert L. Tsai

Faculty Scholarship

Due to its length and richness, The Constitutional Bind could be considered several books in one. It is a socialist critique of American political development that highlights the tradeoffs from incremental rather than transformational progress. It is also a partial intellectual history of radical and alternative constitutional theories marginalized by the set of ideas that came to rule. Finally, the book serves as an urgent plea for fellow citizens to give up the mesmerizing, yet frustratingly confining rhetoric of twentieth-century liberal constitutionalism.

Given Rana’s central objective of investigating the rise of the “creedal” approach to American constitutionalism, I believe it …

A Taking By Any Other Name: Why Exclusionary Zoning Should Be Classified As A Per Se Taking, Matthew J. Ruppel

Seattle University Law Review Online

The housing affordability crisis in U.S. cities, particularly on the West Coast, has been well publicized in recent years, and the search for solutions has drawn together allies from across the ideological spectrum. While various cities and states have rolled out many types of reforms, there remains a widespread regulatory failure preventing the adaptation of cities to modern demands. A primary culprit is exclusionary zoning: plot-by-plot designation of which types of structures can be built on a piece of property— particularly which types of structures are absolutely prohibited from being built—and the broad definitional standards to which those structures must …

With Thanks From A Student And Alumna, Nancy Diesel Mills

Maine Law Review

On the first day of orientation for my law school class, we sat in the Moot Courtroom. After introductory remarks, the Dean was announced. He wore a button down collar shirt, Rep tie, gray suit, and Bean boots. He welcomed us and he told us how great we were. Mostly, he cracked jokes, some about himself, and rattled whatever it is he keeps in his pockets. It was classic Kinvin; and I knew, then, that I had chosen the right place.

L. Kinvin Wroth: A Personal Canadian Appreciation, Innis Christie

Maine Law Review

I became Dean of Dalhousie Law School in Halifax, Nova Scotia, Canada in July of 1985. Since then Kinvin Wroth has been one of the constants, and one of the big pluses, in my working life.

A Tribute To A Colleague Who Has Endured, Orlando E. Delogu

Maine Law Review

There is a certain vogue in the academic world, and certainly in the field of Law, that would measure one's worthy and real value to the profession by the number of astute moves from school to school made in the course of a career. One hoped to ascend, at four or five year intervavls, an unpublished but generally accepted institutional hierarchy (or pecking order). Each move would be marked by acknowledged teaching accomplishment and scholarly writing. In the professional life well-lived these moves would culminate in a chair or senior professorship at any one of ten or a dozen national …

An Appreciation Of L. Kinvin Wroth, Vincent L. Mckusick

Maine Law Review

Kinvin Wroth is a man who sports many hats. After wearing his Dean's hat for twelve years with confidence and grace, Kinvin, at the end of the year, is taking off that hat and returning to wearing full-time his wide assortment of other headgear. He takes off his Dean's hat just after he reaches the age of 58, at the height of his productive powers of scholarship, teaching, and public service. For many years to come, we of the State of Maine will continue to benefit from his labors, performed under his many other hats. But the end of his …

Remarks By The Chancellor, Robert L. Woodbury

Maine Law Review

In a time when university administrators seem to endure very short terms, it is remarkable that Kinvin Wroth served as Dean for 12 years. At the University of Southern Maine alone, he served with four presidents, four chancellors, four provosts, and a score of colleague deans. His permanent and productive legacy rests in no small part on the length of his commitment as well as its character.

Federal Election Commission And Indiana Secretary Of State Campaign Finance Information Resoures, Bert Chapman

Libraries Faculty and Staff Presentations

This presentation covers campaign finance information resources produced by the Federal Election Commission (FEC) and Indiana Secretary of State. It describes how these agencies began, details how they oversee and regulate U.S. federal and Indiana state elections, and documents contributions made by individuals, organizations, political parties, and political action committees to individual candidates and organizations. Reporting documentation on these election races is also included.

Obstructing Precedent, Bill Watson

Northwestern University Law Review

Critics of the Supreme Court sometimes accuse the Justices of disrespecting or being unfaithful to precedent—of undermining certain precedents while leaving them formally in place. Yet it remains unclear what exactly these criticisms mean or why they point to anything objectionable. This Article proposes that critics are often drawing attention to a particular practice: obstructing precedent. A better grasp of what obstructing precedent is and when it is legitimate is important to understanding the Roberts Court’s treatment of precedent in a range of cases.

A court obstructs precedent when it refuses to cooperate with its prior self in building a …

Oliva Elected To American Law Institute, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

Jenn Oliva, Professor of Law and Val Nolan Faculty Fellow, has been elected to the American Law Institute, the organization announced yesterday (Oct. 4).

She becomes the 18th member of the Indiana University Maurer School of Law faculty to earn the prestigious recognition.

“This is a tremendous honor for Professor Oliva and we are proud to have her on our faculty,” said Indiana Law Dean Christiana Ochoa, who holds an ex officio role with the ALI. “Since Jenn joined us in 2023 she’s quickly become an invaluable member of the Maurer community and we’re thrilled to see her recognized.”

A Century Of Scholarship: University Of Arkansas School Of Law Faculty Scholarship 1924–2023, Steven R. Probst

Arkansas Scholarly Editions

Steven R. Probst’s bibliography A Century of Scholarship: University of Arkansas School of Law Faculty Scholarship 1924–2023 marks an important anniversary: the 2024 centennial of the U of A School of Law. To honor this occasion, Probst has assembled, through extensive archival research, the list of publications that U of A law faculty have authored over the course of the school’s hundred-year history. A Century of Scholarship is a testament to the invaluable scholarly contributions of these extraordinary thinkers who have shaped our legal landscape.

Remembering Robert H. Mckinney, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

The Maurer School of Law is mourning the passing of its graduate Robert H. McKinney, a visionary attorney, businessman, civic leader, and philanthropist, who died over the weekend at his home in Michigan. He was 98.

McKinney enrolled at the IU School of Law in Indianapolis after his World War II duties, but was recalled to active duty during the Korean War. McKinney transferred to IU’s law school in Bloomington, where he graduated in 1952.

He remained actively involved with both law schools—and the university—for more than 70 years. In 2011 the IU School of Law in Indianapolis was renamed …

Is The Constitution Of 1787 A White Supremacist Document? Against Essentialism In Constitutional Interpretation, David S. Schwartz

William & Mary Bill of Rights Journal

A curious convergence is emerging in legal academia around the conclusion that the 1787 Constitution is a white supremacist document. Although most originalists would deny that contention, their methodology strongly favors, if it does not compel, an agreement with progressive, “neo-Garrisonian” scholars that the Constitution of 1787 is indeed a white supremacist document. Both the neo-Garrisonian and originalist elements of this implicit convergence stem from their “essentialism” in Constitutional interpretation: the idea that the Constitution or its terms or provisions carry a uniquely and objectively correct meaning, invariant over time, and independent of our evolving normative commitments.

This Article argues …

Section Three Of The Fourteenth Amendment: Insurrection, Mark A. Graber

William & Mary Bill of Rights Journal

The public, scholarly, and legal debate over whether former president Donald Trump is eligible to hold office under Section Three of the Fourteenth Amendment has focused far more on technical legal questions than on whether Trump engaged in an insurrection. Scholarly and public commentary rarely examines the constitutional/ common law of insurrection, preferring instead to examine whether Trump is exempt from Section Three because Section Three either exempts presidents or the presidency from disqualification or because Section Three is not self-executing. Trump v. Anderson (2024) focused on state incapacity to disqualify “oathbreaking insurrectionists” rather than on whether Trump was an …

Standing For Change: Associational Standing As An Aggregational Mechanism In Tenants' Rights, Hope Peraria

Cardozo Journal of Equal Rights & Social Justice

The note argues that tenant associations can serve as an effective vehicle for aggregate lawsuits to vindicate tenants' rights, addressing the persistent enforcement gap in housing rights. By leveraging associational standing, these associations can advocate for shared interests, facilitate community organizing, and complement legal reforms. This approach not only strengthens tenants' collective power but also offers practical solutions to systemic barriers that prevent individuals from asserting their rights.

Not Just Mercy: Governors Should Use The Executive Clemency Power As A Corrective Tool For Mass Incarceration, Laura Tierney

Cardozo Journal of Equal Rights & Social Justice

The note argues that state governors should revive the use of executive clemency as a corrective tool to address mass incarceration and its disproportionate impact on communities of color. Executive clemency, which includes pardons, commutations, and sentence reductions, offers a means to provide immediate relief and promote social justice. The author emphasizes the historical roots of clemency as a check on the criminal justice system and advocates for its use to reduce prison populations and counteract the legacy of punitive policies.

Renewing Our Vows: The Lawyer's Oath And Our Pledge To Democracy, Colin M. Black

Suffolk University Law School Faculty Works

For centuries, lawyers have sworn to an oath as a prerequisite to admission. The oath, barely evolved from their historical roots, represents the guiding commitment lawyers make to democratic principles of honesty, integrity, fairness, and the rule of law. This commitment is in exchange for the power and privilege of belonging to the legal profession. However, the ethical landscape for legal practitioners has evolved, particularly in response to the alarming events of the 2020 U.S. presidential election. These events revealed significant lapses in the judgment and conduct among some lawyers, exposing the need for a recommitment to the democratic principles …

From The Editors, Robert Dinerstein, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

This issue includes articles, conference transcripts, and book reviews that date to 2019. The woeful delay is solely the result of our own editorial failure, and we wish to apologize on behalf of the Journal to our readers and to the many contributing authors who put their trust in us. Rest assured that procedures have been established to prevent reoccurrence of such unacceptable time lags. But do know that we appreciate having fallen far short of professional standards in this instance.

Theistic Illiberal Constitutionalism: A Review Of Adrian Vermeule’S Common Good Constitutionalism, Kyron J. Huigens

Articles

Adrian Vermeule’s Common Good Constitutionalism drew a remarkable amount of attention from constitutional law scholars when it was published in 2020. About eighteen months later, Vermeule published a piece complaining that the critics had missed the point, that they had ignored the natural law jurisprudence that grounds the work. He was correct. This Review addresses Vermeule’s natural law jurisprudence, emphasizing the fact that it is a religious natural law jurisprudence. His arguments are in the tradition of ScholasticismAristotelian logic incorporated into Christian theology by St. Thomas Aquinas. Scholasticism is a remarkably weak foundation for constitutional jurisprudence. It is a vast …

Constitutional Disorder, Robert L. Tsai

Faculty Scholarship

This is a review essay inspired by two books: Yuval Levin's American Covenant (2024) and Erwin Chemerinsky's No Democracy Lasts Forever (2024). I make the following points. First, all treatments of the U.S. Constitution can be mapped on a continuum from the worshipful to the diagnostic. Second, Levin's account, which inclines toward the devotional, extols certain features deemed both originalist and virtuous: social unity over untidiness, consensus over dissent, fear and loathing of mass politics. Third, such accounts may not be sufficiently nimble to grapple with contemporary problems such as new forms of oligarchy or movement capture of traditional parties. …

An Extremely Important Document: Khea's Struggle For A Contract, 1974-1978, John L.S. Daley Dr

KNEA 50th Anniversary

In 1973, the Kansas State College, Pittsburg administration fired thirteen faculty members without cause. In order to improve administration-faculty relations, remaining faculty organized, petitioned for recognition, and drafted PSU/KNEA's first contract with PSU/KBOR, which went into effect five years later. The narrative covering this period draws on Axe Library's KNEA Collection and interviews of former faculty.

The Takings Blunderbuss: From Pennsylvania Coal To Dobbs, Michael Allan Wolf

UF Law Faculty Publications

This Article explores three problems with the excess use of the Takings Clause (the "takings blunderbuss") that should cause concern not to left-wing judges and scholars who endorse seemingly unfettered activism from the bench and champion an organic view of the Constitution, but instead, and somewhat surprisingly, to conservatives who claim to eschew those practices. The first problem is that the text and original understanding, as far as we can discern, indicate that the Takings Clause was designed to ensure that owners receive payment when they are forced to sacrifice ownership of their tangible property for public use, most commonly …

Representation Without Taxation? A Historical Review Of Newfoundland And Labrador’S Municipal System And Quasi-Municipal Structures, Gregory French

Dalhousie Law Journal

Newfoundland and Labrador is unique among Canadian provinces in its municipallevel governmental structures, and in particular, its substantial lack thereof. The province does not have a system of counties or an operating form of regional government. Many areas of the province operate without a formal municipal government and avoid property taxation by operating on a limited fee-for-service model of local government, or in some cases a total lack of sub-provincial government. Tens of thousands of residents live within this tax-free model today. This paper explores how this anomalous situation came to be, the issues it creates in modern society and …

A Social Status Theory Of Defamation Law, Yonathan A. Arbel

Articles

Despite deep inequality in social status and social capital in American society, legal scholarship has done relatively little to understand the structures that produce status and maintain its distribution. The Article argues that defamation law plays such a role. The orthodox view is that defamation law's goal is to protect dignity. This view was expressed in a famous Supreme Court holding in 1966, which held that defamation law is necessary to protect "the essential dignity" of "every human being. " The later seminal work of Robert Post cemented it. Seemingly unrelated, scholars of defamation law have found its structure mystifying, …

Prudence, Role Morality, And Restraint: Judge Wilkinson On The Separation Of Powers, Katherine Mims Crocker, Jack Goldsmith

Faculty Scholarship

Caution in reviewing the actions of the legislative and executive branches has been a hallmark of the jurisprudence of Judge J. Harvie Wilkinson III. The Constitution “at most gives judges specific authority to redress violations of specific provisions,” Judge Wilkinson writes in his book Cosmic Constitutional Theory. But even when doing so, “courts must exercise great caution before injecting themselves into the vortex of varied political questions,” for “[i]t is often far preferable to allow the political institutions under our Constitution to struggle among themselves, with each bringing to bear the respective arsenal of powers the Framers accorded them.” …