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Item Is There a Constitutional Common Good?(Elsevier, 2021-03-17) Wright, R. George; Robert H. McKinney School of LawIdentifying and pursuing some widely shared idea of the common good seems central to a sustainable constitutional order. This may seem especially true in an era of deep political division. The problem, though, is that such political division may indeed heighten the need for recognizing and promoting a shared constitutional common good, while at the same time preventing just such an identification and pursuit of any such common good. What is needed is a way to disrupt this vicious circle. Herein, we illustrate the operation of this vicious circle. We conclude, however, more optimistically, that this vicious circle can ultimately be disrupted. To some degree, increased attention to familiar basic virtues can perform this vital constructive role.Item How to Do Surgery on the Constitutional Law of Libel(Elsevier, 2021-08-30) Wright, R. George; Robert H. McKinney School of LawThe constitutional law of libel has, unfortunately, focused crucially on distracting and misguided inquiries into the various distinctions among public figure and private figure libel plaintiffs. Equally unfortunately, attempts to reform and reconfigure the constitutional law of libel have often focused on public versus private figure libel plaintiff distinctions. The logic of free speech law itself suggests, instead, a judicial abandonment of this misconceived category. Attention instead to the distinction between defamatory speech that addresses, and that does not address, a matter of public interest and concern, however reasonably defined, actually tracks the basic reasons for protecting, and for limiting, freedom of speech in the first place. And this is where the constitutional law of libel should primarily focus.Item Sharpening the Focus of Free Speech Law: The Crucial Role of Government Intent(Elsevier, 2021-08-29) Wright, R. George; Robert H. McKinney School of LawContemporary free speech law is typically misfocused. This misfocus serves neither the purposes underlying the institution of free speech nor any broader social rights and interests in conflict with freedom of speech. As a general matter, the adjudication of free speech claims should properly focus, centrally, on the intent of the regulating government. More specifically, courts should focus crucially on whether the government has, in enacting or enforcing its speech regulation, intended to suppress or disadvantage a presumed or actual idea or its expression. This sharpened focus would allow the courts to responsibly address a surprisingly broad range of free speech cases, with a substantially diminished need for attention to a number of artificial, if not unnecessary, judicial doctrines that have gradually been incorporated into the free speech case law.Item Free Exercise and the Public Interest After Tandon v. Newsom(Elsevier, 2021-05-02) Wright, R. George; Robert H. McKinney School of LawThis very brief paper addresses the important Free Exercise case of Tandon v. Newsom, with an emphasis on the initial strict scrutiny determination, and then on applying the strict scrutiny test in appropriate cases.Item Disrespect as the Essence of Constitutional Right Violations(Elsevier, 2021-08-30) Wright, R. George; Robert H. McKinney School of LawThis Article presents a simple, broad-sweeping, unifying account of the underlying logic and limits of the important constitutional rights. The underlying logic of constitutional rights turns out to be a matter of respect and disrespect. The essential focus of this account is thus on the idea of respect, and often more incisively, on the idea of disrespect. Certainly, no single idea can fully account for all phases of all constitutional rights. But the idea of respect, and of disrespect in particular, can aptly describe much of the territory of the most important constitutional rights, whether the rights in question are officially acknowledged, or as yet unacknowledged. It is certainly true that many of the harms associated with constitutional rights violations are not entirely reducible to matters of respect and disrespect. And certainly, constitutional protection of particular rights may serve a variety of purposes, not all of which are fully expressed in terms of fundamental respect and disrespect. The recognition, the threshold enforcement, and the eventual limitation of constitutional rights is in this sense inevitably pluralistic. The argument herein, though, is that considerations of respect and disrespect, in a fundamental sense, generally structure and make distinctive sense of the pluralism of constitutional rights.Item Free Speech and Antisemitism: Collin v. Smith Today(Elsevier, 2021-09-08) Wright, R. George; Robert H. McKinney School of LawThe Skokie-based Collin v. Smith litigation resulted in our law's most significant constitutional response to antisemitic hate speech. The Skokie case opinions shed light on how antisemitism was thought of at the time and place in question. More importantly, how we choose now to understand the Collin v. Smith cases tells us much about how we conceive of antisemitism and of antisemitic injury today. The argument herein is that our understanding of freedom of speech, and of its value and limits, has significantly evolved over the decades since Collin v. Smith. Relatedly, our collective understanding of the harms and injuries inflicted by antisemitic speech has, at the deepest level, been significantly changing as well. In both of these respects, the Collin v. Smith litigation has only increased in importance over time.Item Robert Jackson's Non-Delegation Doctrine(Elsevier, 2021-03-19) Magliocca, Gerard N.; Robert H. McKinney School of LawThis brief Essay explores Robert Jackson's theory of the non-delegation doctrine, which was first articulated in a brief that he filed as Solicitor General in Currin v. Wallace. The Supreme Court decided Currin without addressing Jackson’s theory and his brief was forgotten. But the Currin brief deserves renewed attention both for its reasoning and for its conclusions on non-delegation. First, Jackson argued that there are no internal limits on Congress’s discretion to delegate authority to executive agencies. Second, he thought that there were such limits on Congress’s discretion to delegate authority to the President himself. The first point confirms, albeit in Jackson’s inimitable prose style, the legal consensus since 1935. His second point, though, would transform separation-of-powers law by extending constitutional limits to the authority that Congress may confer on the President for domestic affairs. Jackson’s brief in Currin also clarifies his concurrence in Youngstown Sheet and Tube Co. v. Sawyer. n setting forth the first of his three categories for judging the legality of a presidential act, Justice Jackson explained: “When the President acts pursuant to an express or implied authorization of Congress, his authority is at his maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” This statement can be read to mean that a presidential action based on a congressional authorization is invalid only if the act is beyond the reach of the federal government. But that reading is wrong. Jackson qualified the phrase “all that Congress can delegate” with a footnote stating that executive action could be invalid because Congress cannot delegate authority to the President. Any ambiguities on that score are resolved by reading the concurrence in conjunction with the Currin brief, where Solicitor General Jackson claimed that congressional delegations to the President could be unconstitutional. Thus, a narrow form of the non-delegation doctrine is consistent with his Youngstown opinion.Item Lessons from Teaching Tax Online(Pitt Open Library, 2021) Ryznar, Margaret; Robert H. McKinney School of LawItem Work Hard and Die Poor: The History of Law Libraries in Indiana(Indiana University, 2024-10) Little, Lee R.; Robert H. McKinney School of LawPrinted legal materials have been utilized by practitioners since the dawn of the Anglo-European legal system in what is now the United States. When Indiana was opened for settlement, attorneys and judges brought their private libraries to the state. These initial collections were much smaller than the robust and extensive law libraries that existed in the state prior to the advent of digital legal resources. This paper tracks the development of law libraries in Indiana from the territorial period through the present day, along with the social and economic trends that impacted library development.Item “Commonly Estimated as One Judge”: Bushrod Washington and the Marshall Court(Wiley, 2022) Magliocca, Gerard N.; Robert H. McKinney School of Law