Law Commons^™

Taking Tax Due Process Seriously: The Give And Take Of State Taxation, Hayes R. Holderness

Law Faculty Publications

As the Internet has increased the ease and amount of interstate transactions, the states have struggled to require “remote vendors” — vendors without a physical presence in the taxing state — to collect or pay taxes. The states are attempting to overcome these struggles by lowering Commerce Clause limitations on their jurisdiction to tax, but meaningful limitations on such jurisdiction imposed by the Due Process Clause await the states. The Due Process Clause requires that state actions be fundamentally fair, and, to meet this standard, a state must provide a person with a benefit and the person must indicate acceptance …

Beyond Incorporation, Kurt T. Lash

Law Faculty Publications

Incorporation as a theory of constitutional interpretation is dying. Incorporationist scholars are killing it. In this paper, I argue that they are right to do so, whether they mean to or not. The current incorporation debate bears so little resemblance to the theory of incorporation as it originally emerged at the time of the New Deal that I argue it is time to abandon the metaphor of incorporation altogether and admit that what we are after has nothing to do with incorporated texts from 1787. Our search is for the public understanding of texts added to the Constitution in 1868. …

The Process Due Indefinitely Detained Citizens, Carl W. Tobias

Law Faculty Publications

A very controversial feature of the "war on terror" is the scope of the power which Congress has granted President George W. Bush to designate suspected terrorists enemy combatants and indefinitely detain them. The United States Court of Appeals for the Fourth Circuit has most fully, if not clearly, resolved this question.

The United States incarcerated two citizens with little process for more than a year in the Charleston and Norfolk naval brigs. The first litigated three habeas corpus petitions before the Fourth Circuit and a fourth to the Supreme Court before the government released him. The second convinced a …

Confronting Death: Sixth Amendment Rights At Capital Sentencing, John G. Douglass

Law Faculty Publications

The Court's fragmentary approach has taken pieces of the Sixth Amendment and applied them to pieces of the capital sentencing process. The author contends that the whole of the Sixth Amendment applies to the whole of a capital case, whether the issue is guilt, death eligibility, or the final selection of who lives and who dies. In capital cases, there is one Sixth Amendment world, not two. In this Article, he argues for a unified theory of Sixth Amendment rights to govern the whole of a capital case. Because both Williams and the Apprendi-Ring-Booker line of cases purport to rest …

The Story Of Shaffer: Allocating Jurisdictional Authority Among The States, Wendy Collins Perdue

Law Faculty Publications

Shaffer v. Heitner is one of a long series of Supreme Court cases addressing the scope of state-court territorial authority. Indeed, Shaffer is the first of a dozen modern cases that delineated the Court's current conception of the constitutional limits on state-court jurisdictional authority.

Determining whether a court has jurisdiction to hear a dispute is an important preliminary step in any litigation. But the constitutional doctrine the Court has developed in this area is also an interesting window on the Court's more general understanding of the allocation of power among the states.

The Absence Of Due Process In Fiduciary Accounting: A Constitutional Concem, J. Rodney Johnson

Law Faculty Publications

Once upon a time the content of a legal notice posted on the courthouse door was likely to become a matter of community knowledge within a reasonable period of time. Today, however, few persons would seriously suggest that courthouse posting satisfies minimum due process requirements for notice to parties of a proceeding affecting their property rights. Yet this is the only form of notice that Virginia law provides for beneficiaries when their fiduciaries make accountings before the commissioner of accounts. And, topping this, there is no provision for any form of notice to beneficiaries when the commissioner reports to the …