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Articles 1 - 30 of 31

Full-Text Articles in Law

The Constitutional Canon As Argumentative Metonymy, Ian Bartrum Dec 2009

The Constitutional Canon As Argumentative Metonymy, Ian Bartrum

William & Mary Bill of Rights Journal

No abstract provided.


A Promise The Nation Cannot Keep: What Prevents The Application Of The Thirteenth Amendment In Prison?, Raja Raghunath Dec 2009

A Promise The Nation Cannot Keep: What Prevents The Application Of The Thirteenth Amendment In Prison?, Raja Raghunath

William & Mary Bill of Rights Journal

The walls of the prison are not solely physical. The doctrine of judicial deference to prison officials, which compels courts to defer to the discretion of those officials in almost all instances, obstructs the effective scrutiny of modern practices of punishment. Since its ratification, the Thirteenth Amendment—which prohibits slavery or involuntary servitude anywhere within the United States or its jurisdiction, except where imposed “as a punishment for crime whereof the party shall have been duly convicted”1—has been seen by courts as one brick in this wall. This Article makes the novel argument that, properly read, the amendment should function instead …


Georgia V. Randolph, The Red-Headed Stepchild Of An Ugly Family: Why Third Party Consent Search Doctrine Is An Unfortunate Fourth Amendment Development That Should Be Restrained, Aubrey H. Brown Dec 2009

Georgia V. Randolph, The Red-Headed Stepchild Of An Ugly Family: Why Third Party Consent Search Doctrine Is An Unfortunate Fourth Amendment Development That Should Be Restrained, Aubrey H. Brown

William & Mary Bill of Rights Journal

No abstract provided.


Rescuing The Fourteenth Amendment Privileges Or Immunities Clause: How "Attrition Or Parliamentary Processes" Begat Accidental Ambiguity; How Ambiguity Begat Slaughter-House, Michael Anthony Lawrence Dec 2009

Rescuing The Fourteenth Amendment Privileges Or Immunities Clause: How "Attrition Or Parliamentary Processes" Begat Accidental Ambiguity; How Ambiguity Begat Slaughter-House, Michael Anthony Lawrence

William & Mary Bill of Rights Journal

No abstract provided.


Appeal To Heaven: On The Religious Origins Of The Constitutional Right Of Revolution, John M. Kang Dec 2009

Appeal To Heaven: On The Religious Origins Of The Constitutional Right Of Revolution, John M. Kang

William & Mary Bill of Rights Journal

No abstract provided.


The Bapcpa, The Gag Rule, And The First Amendment: A Proposal For Alignment Through Interpretive And Analytical Change, Cullen Ann Drescher Dec 2009

The Bapcpa, The Gag Rule, And The First Amendment: A Proposal For Alignment Through Interpretive And Analytical Change, Cullen Ann Drescher

William & Mary Bill of Rights Journal

No abstract provided.


Discriminatory Acquittal, Tania Tetlow Oct 2009

Discriminatory Acquittal, Tania Tetlow

William & Mary Bill of Rights Journal

This article is the first to analyze a pervasive and unexplored constitutional problem: the rights of crime victims against unconstitutional discrimination by juries. From the Emmett Till trial to that of Rodney King, there is a long history of juries acquitting white defendants charged with violence against black victims. Modem empirical evidence continues to show a devaluation of black victims; dramatic disparities exist in death sentence and rape conviction rates according to the race of the victim. Moreover, just as juries have permitted violence against those who allegedly violated the racial order, juries use acquittals to punish female victims of …


Scaling Property With Professor Ellickson, Lee Anne Fennell Oct 2009

Scaling Property With Professor Ellickson, Lee Anne Fennell

William & Mary Bill of Rights Journal

Presented at the 2008 Brigham-Kanner Property Rights Conference.


Must God Be Dead Or Irrelevant: Drawing A Circle That Lets Me In, Richard M. Esenberg Oct 2009

Must God Be Dead Or Irrelevant: Drawing A Circle That Lets Me In, Richard M. Esenberg

William & Mary Bill of Rights Journal

Some scholars claim that current Establishment Clause doctrine can increasingly be explained in terms of substantive neutrality-that is, the idea that government ought to treat religion and irreligion (or comparable secular activities) in the same way. Whether a product of the Court's commitment to the idea or an artifact of the positions of the "swing" Justices, this proposition has considerable explanatory power. The Supreme Court has, in recent years, permitted the government to make financial support equally available for religious uses, as long as it is done on a neutral basis and through the private choice of the recipients. It …


Ellickson's Extraordinary Look At The Ordinary, Henry E. Smith Oct 2009

Ellickson's Extraordinary Look At The Ordinary, Henry E. Smith

William & Mary Bill of Rights Journal

Presented at the 2008 Brigham-Kanner Property Rights Conference.


Private Norms And Public Spaces, Nicole Stelle Garnett Oct 2009

Private Norms And Public Spaces, Nicole Stelle Garnett

William & Mary Bill of Rights Journal

Presented at the 2008 Brigham-Kanner Property Rights Conference.


Of Natural Threads And Legal Hoops: Bob Ellickson's Property Scholarship, Carol M. Rose Oct 2009

Of Natural Threads And Legal Hoops: Bob Ellickson's Property Scholarship, Carol M. Rose

William & Mary Bill of Rights Journal

Presented at the 2008 Brigham-Kanner Property Rights Conference.


Your Honor, I Seen Him With That Gang: The Constitutionality Of The Federal Criminal Street Gang Statute In The Wake Of Apprendi V. New Jersey, Jennifer E. Fleming Oct 2009

Your Honor, I Seen Him With That Gang: The Constitutionality Of The Federal Criminal Street Gang Statute In The Wake Of Apprendi V. New Jersey, Jennifer E. Fleming

William & Mary Bill of Rights Journal

No abstract provided.


The Unbearable Lightness Of Marriage In The Abortion Decisions Of The Supreme Court: Altered States In Constitutional Law, William W. Van Alstyne Oct 2009

The Unbearable Lightness Of Marriage In The Abortion Decisions Of The Supreme Court: Altered States In Constitutional Law, William W. Van Alstyne

William & Mary Bill of Rights Journal

No abstract provided.


In Defense Of Ideology: A Principled Apporach To The Supreme Court Confirmation Process, Lori A. Ringhand Oct 2009

In Defense Of Ideology: A Principled Apporach To The Supreme Court Confirmation Process, Lori A. Ringhand

William & Mary Bill of Rights Journal

In this paper, Professor Ringhand offers a principled defense of an ideological approach to the Supreme Court Justice confirmation process. In constructing her argument, she does three things. First, she explores how the insights provided by recent empirical legal scholarship have created a need to rethink the role of the Supreme Court and, consequently, the process by which we select Supreme Court Justices. In doing so, Professor Ringhand explains how these insights have called into question much of our conventional constitutional narrative, and how this failure of the conventional narrative has in turn undermined traditional objections to an ideologically-based confirmation …


Prisoners For Sale: Making The Thirteenth Amendment Case Against State Private Prison Contracts, Ryan S. Marion Oct 2009

Prisoners For Sale: Making The Thirteenth Amendment Case Against State Private Prison Contracts, Ryan S. Marion

William & Mary Bill of Rights Journal

No abstract provided.


Constitutional Solipsism: Toward A Thick Doctrine Of Article Iii Duty; Or Why The Federal Circuits' Nonprecedential Status Rules Are (Profoundly) Unconstitutional, Penelope Pether May 2009

Constitutional Solipsism: Toward A Thick Doctrine Of Article Iii Duty; Or Why The Federal Circuits' Nonprecedential Status Rules Are (Profoundly) Unconstitutional, Penelope Pether

William & Mary Bill of Rights Journal

No abstract provided.


Guns And Speech Technologies: How The Right To Bear Arms Affects Copyright Regulations Of Speech Technologies, Edward Lee May 2009

Guns And Speech Technologies: How The Right To Bear Arms Affects Copyright Regulations Of Speech Technologies, Edward Lee

William & Mary Bill of Rights Journal

This Article examines the possible effect the Supreme Court's landmark Second Amendment ruling in District of Columbia v. Heller will have on future cases brought under the Free Press Clause.' Based on the text and history of the Constitution, the connection between the two Clauses is undeniable, as the Heller Court itself repeatedly suggested. Only two provisions in the entire Constitution protect individual rights to a technology: the Second Amendment's right to bear "arms" and the Free Press Clause's right to the freedom of the "press," meaning the printing press. Both rights were viewed, moreover, as pre-existing, natural rights to …


The Congressional Chaplaincies, Christopher C. Lund May 2009

The Congressional Chaplaincies, Christopher C. Lund

William & Mary Bill of Rights Journal

Roughly twenty-five years ago, in Marsh v. Chambers, the Supreme Court considered the congressional chaplaincies, and concluded that they were not "an 'establishment' of religion or a step toward establishment," but instead were "simply a tolerable acknowledgment of beliefs widely held among the people of this country."' That latter phrase has been repeated hundreds of times in cases and law review articles; it suggests that the chaplaincies are uninteresting and uncontroversial and that they have been so throughout our history. The Court in Marsh looked only briefly at the history of the chaplaincies.2 A deeper look at that history reveals …


Is Sharif's Castle Deductible? Islam And The Tax Treatment Of Mortgage Debt, Roberta Mann May 2009

Is Sharif's Castle Deductible? Islam And The Tax Treatment Of Mortgage Debt, Roberta Mann

William & Mary Bill of Rights Journal

This Article examines the tax treatment of Islamic mortgage alternatives and considers the cultural and constitutional implications of the tax treatment of mortgage debt. Islamic law cannot be separated from the religion of Islam, and one of the primary tenets of Islamic law is the prohibition of riba, which is defined by some Islamic jurists as the payment of interest on any loan. Financing institutions, working with Muslim religious leaders, have developed a number of financing instruments that do not violate the prohibition against riba, thus facilitating home ownership for those Muslims who do not feel comfortable with a traditional …


Standing To Challenge State And Local Immigration Regulation: How The Notion Of Expressive Injury Can Restore Federal Power Over Immigration, Timothy A. Newman May 2009

Standing To Challenge State And Local Immigration Regulation: How The Notion Of Expressive Injury Can Restore Federal Power Over Immigration, Timothy A. Newman

William & Mary Bill of Rights Journal

No abstract provided.


The Dormant Commerce Clause: Adopting A New Standard And A Return To Principle, Timothy J. Slattery May 2009

The Dormant Commerce Clause: Adopting A New Standard And A Return To Principle, Timothy J. Slattery

William & Mary Bill of Rights Journal

No abstract provided.


The Impact Of Information Overload On The Capital Jury's Ability To Assess Aggravating And Mitigating Factors, Katie Morgan, Michael J. Zydney Mannheimer May 2009

The Impact Of Information Overload On The Capital Jury's Ability To Assess Aggravating And Mitigating Factors, Katie Morgan, Michael J. Zydney Mannheimer

William & Mary Bill of Rights Journal

Since 1976, the U.S. Supreme Court has required that death penalty regimes meet two requirements. First, in order to minimize arbitrariness in the imposition of the death penalty, states must reserve capital punishment to a narrow class of offenders, those most deserving of death. States have done so by requiring that the prosecution prove at least one aggravating factor, i.e., some circumstance that separates the capital defendant on trial from those ineligible to be executed. Second, states must allow for individualization in sentencing by permitting the defendant to introduce mitigating evidence in order to persuade the jury that he is …


Unpleasant Speech On Campus, Even Hate Speech, Is A First Amendment Issue, Erwin Chemerinsky Mar 2009

Unpleasant Speech On Campus, Even Hate Speech, Is A First Amendment Issue, Erwin Chemerinsky

William & Mary Bill of Rights Journal

No abstract provided.


Territory, Plants, And Land-Use Rights Among The San Of Southern Africa: A Case Study In Regional Biodiversity, Traditional Knowledge, And Intellectual Property, Stephen R. Munzer, Phyllis Chen Simon Mar 2009

Territory, Plants, And Land-Use Rights Among The San Of Southern Africa: A Case Study In Regional Biodiversity, Traditional Knowledge, And Intellectual Property, Stephen R. Munzer, Phyllis Chen Simon

William & Mary Bill of Rights Journal

No abstract provided.


Judicial Confusion And Inconsistency In Handling Juror Misconduct: A New Proposal, Kristen D. Clardy Mar 2009

Judicial Confusion And Inconsistency In Handling Juror Misconduct: A New Proposal, Kristen D. Clardy

William & Mary Bill of Rights Journal

No abstract provided.


How The Diversity Rationale Lays The Groundwork For New Discrimination: Examining The Trajectory Of Equal Protection Doctrine, Michael A. Helfand Mar 2009

How The Diversity Rationale Lays The Groundwork For New Discrimination: Examining The Trajectory Of Equal Protection Doctrine, Michael A. Helfand

William & Mary Bill of Rights Journal

This Article advocates differentiating between two distinct categories of equal protection cases. The first-what I have termed indicator cases-are instances where courts consider whether there are sufficient factual indications to demonstrate the existence of aprimafacie equal protection violation. The second-violation casesare instances where courts consider, having already determined the existence of an equal protection violation, whether there is a good enough justification for a prima facie equal protection violation. Unfortunately, the Supreme Court has not differentiated between these two different types of cases. This has led to a string of decisions where the Supreme Court has erroneously looked for justifications …


Making Sense Of High School Speech After Morse V. Frederick, Mark W. Cordes Mar 2009

Making Sense Of High School Speech After Morse V. Frederick, Mark W. Cordes

William & Mary Bill of Rights Journal

No abstract provided.


Separationism To The Extreme: The Mt. Soledad Cross And The Ninth Circuit's Crusade To Burden The Free Exercise Clause, Cameron M. Rountree Mar 2009

Separationism To The Extreme: The Mt. Soledad Cross And The Ninth Circuit's Crusade To Burden The Free Exercise Clause, Cameron M. Rountree

William & Mary Bill of Rights Journal

No abstract provided.


Losing Our Religion: Reevaluating The Section 501(C)(3) Exemption Of Religious Organizations That Discriminate, Nicholas A. Mirkay Mar 2009

Losing Our Religion: Reevaluating The Section 501(C)(3) Exemption Of Religious Organizations That Discriminate, Nicholas A. Mirkay

William & Mary Bill of Rights Journal

No abstract provided.