Constitutional Law Commons^™

Toward A Religious Minority Voice: A Look At Free Exercise Law Through A Religious Minority Perspective, Samuel J. Levine

William & Mary Bill of Rights Journal

Legal scholars have recently advanced theories emphasizing the importance of perspectives in the law. Perspective scholarship recognizes that laws are necessarily shaped by society's dominant forces, including its biases and preconceptions. Perspective scholars attempt to understand how these forces have shaped our laws, and they suggest changes to accommodate those affected by society's biases.

In this Article, Professor Levine introduces the concept of a religious minority perspective. He develops the concept of a religious minority perspective in the context of several, prominent Free Exercise cases. Professor Levine discusses these cases in his presentation of the central themes of a religious …

It Takes A Militia: A Communitarian Case For Compulsory Arms Bearing, Brannon P. Denning, Glenn Harlan Reynolds

William & Mary Bill of Rights Journal

During the last year, both Communitarianism and private militias have received a considerable amount of attention in the popular press and in law reviews; nevertheless, few observers have discussed the similarities between these two seemingly dissimilar movements. In this Essay, the authors demonstrate that Communitarians and militias actually have more in common than it might at first appear. Summarizing the Communitarian agenda, the authors note that Communitarians speak a language that would be readily understood by the Framers, who saw militias as an important vehicle through which civic virtue could be transmitted. The importance the Framers placed upon militias is …

Lynching And The Law In Georgia Circa 1931: A Chapter In The Legal Career Of Judge Elbert Tuttle, Anne S. Emanuel

William & Mary Bill of Rights Journal

Elbert Parr Tuttle joined the federal bench in 1954, shortly after the Supreme Court decided Brown v. Board of Education. In 1960, he became the Chief Judge of the United States Court of Appeals for the Fifth Circuit, the court with jurisdiction over most of the deep south. As Chief Judge, he forged a jurisprudence that proved effective in overcoming the intransigence and outright rebellion of those who had long denied fundamental constitutional rights to African Americans.

This Essay traces an episode that occurred in 1931, when Tuttle spearheaded an effort to obtain a fair trial for John Downer, a …

A Constitutional Bibliography, Thomas E. Baker

William & Mary Bill of Rights Journal

No abstract provided.

A Clash Of Fundamental Rights: Conflicts Between The Fifth And Sixth Amendments In Criminal Trials, Roderick R. Ingram

William & Mary Bill of Rights Journal

The United States Constitution's Fifth and Sixth Amendments protect the rights of criminal defendants and witnesses. The Fifth Amendment's privilege against self-incrimination protects witnesses from forced self-incrimination, and the Sixth Amendment provides criminal defendants with the right to cross-examine prosecution witnesses and to have compulsory process for obtaining witnesses. These fundamental rights conflict when a prosecution witness invokes the Fifth Amendment privilege on cross-examination or when a defense witness invokes the privilege on direct-examination. A grant of either use or transactional immunity would remove the potential for self-incrimination, but courts are split on whether they possess the authority to grant …

The Failure Of The Religious Freedom Restoration Act Under Section 5 Of The Fourteenth Amendment, William W. Van Alstyne

Faculty Publications

No abstract provided.

Section 8: Federalism, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Tinkering With The Machinery Of Death: An Examination And Analysis Of State Indigent Defense Systems And Their Application To Death-Eligible Defendants, Michael D. Moore

William & Mary Law Review

No abstract provided.

Freedom To Speak Unintelligibly: The First Amendment Implications Of Government-Controlled Encryption, Jill M. Ryan

William & Mary Bill of Rights Journal

The emergence of the computer has revolutionized communications, allowing quick dissemination of information to large numbers of people. Information transmitted electronically is often safeguarded through a widely available method known as encryption, which renders the information unintelligible to anyone without the ability to decrypt the message. Law enforcement agencies argue that unregulated encryption hinders their ability to prevent crime by providing criminals with a method of communication that cannot be accessed by police departments and government agencies. Proponents of encryption argue that privacy, security, and constitutional concerns outweigh law enforcement's fears, guaranteeing the ability to communicate confidentially.

In 1994, the …

Media Misbehavior And The Wages Of Sin: The Constitutionality Of Consequential Damages For Publication Of Ill-Gotten Information, John J. Walsh, Steven J. Selby, Jodie L. Schaffer

William & Mary Bill of Rights Journal

Driven by competitive forces and enabled by technological advances such as hidden cameras, the media have become increasingly intrusive in their newsgathering techniques. Claims against the media for unlawful acts such as invasion of privacy, trespass, and fraud highlight the severe tension existing between the rights of the victims of media misconduct and the principles of the First Amendment. The authors contend that by acting unlawfully in their newsgathering, the media forfeit First Amendment protection. They emphasize that the newsworthiness of the information unlawfully obtained by the media should not be considered when determining liability, and conclude that the media …

The Constitutional Interest In Getting The News: Toward A First Amendment Protection From Tort Liability For Surreptitious Newsgathering, Paul A. Lebel

William & Mary Bill of Rights Journal

No abstract provided.

The Conflict Between "Fair Housing" And Free Speech, Mary Caroline Lee

William & Mary Bill of Rights Journal

Under the Fair Housing Act and its 1988 amendments, the Department of Housing and Urban Development has the power to investigate alleged discrimination in public housing. The targets of these investigations are often neighborhood organizations and community groups voicing their opposition to the placement of public housing in their neighborhoods. The alleged discrimination can be nothing more than group meetings and the petitioning of local government officials. Mindful that such investigations have sometimes adversely affected the exercise of First Amendment rights, in 1994 HUD issued guidelines for handling fair housing complaints when such rights are at issue.

This Note will …

The Substantial Burden Of Municipal Zoning: The Religious Freedom Restoration Act As A Means To Consistent Protection For Church-Sponsored Homeless Shelters And Soup Kitchens, Marc-Olivier Langlois

William & Mary Bill of Rights Journal

Despite the increase in poverty and homelessness in the United States, many municipalities are attempting to use zoning regulations to limit the spread of church-sponsored programs that minister to the poor. Although the Religious Freedom Restoration Act of 1993 (RFRA) suggests that courts should find churchsponsored programs exempt from the burdens of municipal zoning, recent decisions in federal courts demonstrate that church-sponsored homeless shelters and soup kitchens will receive the same inconsistent protection they received under traditional Free Exercise Clause analysis. This Note argues that enforcement of zoning regulations places a substantial burden on church-sponsored programs that minister to the …

Tainted Sources: First Amendment Rights And Journalistic Wrongs, Robert M. O'Neil

William & Mary Bill of Rights Journal

The issue of news organizations' potential liability for their newsgathering practices has garnered significant attention in several recent cases. Robert M. O'Neil discusses several such cases which have focused on the balance between the First Amendment interests at stake and the improper or possibly illegal manner in which the media obtained its information. The author concludes by suggesting principles to guide in balancing these interests

Tortious Interference: The Limits Of Common Law Liability For Newsgathering, Sandra S. Baron, Hilary Lane, David A. Schulz

William & Mary Bill of Rights Journal

Media lawyers have recently been confronted with a relatively new source of litigation: the tort of intentional interference with contractual relations, which arises out of confidentiality agreements. In this Article, the authors identify the elements of tortious interference with contracts and examine the key issues presented when this tort is applied to newsgathering. The authors then consider a potential defense based on the First Amendment. In light of the public and constitutional interests at stake, the authors conclude that the breach of a confidentiality agreement should not sustain a tortious interference claim when the press is involved in newsgathering activity.

Vanity And Vexation: Shifting The Focus To Media Conduct, Jane E. Kirtley

William & Mary Bill of Rights Journal

Lawsuits brought by corporations against news organizations during the last few years demonstrate that it is no longer sufficient for the press to get its facts straight. With some industries literally fighting for their lives, a new legal climate has encourage litigation that deflects bad publicity by shifting the focus away from the traditional issue of accuracy to a critical examination of the news media's newsgathering techniques. Concerns about the reaction of courts to unorthodox reporting methods may prompt news organizations to censor themselves, but the author argues that facing the threat of mega-verdicts or contempt citations should be regarded …

The Juvenile Curfew: Unconstitutional Imprisonment, Tona Trollinger

William & Mary Bill of Rights Journal

Faced with rising crime rates, many municipalities in recent years have enacted juvenile curfews. Professor Tona Trollinger uses an ordinance enacted in Dallas, Texas, as a framework for analyzing juvenile curfews. The author discusses various prudential and constitutional objections to these curfews, including both substantive and procedural due process challenges. The author concludes that the admittedly valid governmental objectives underlying such curfews do not override their constitutional infirmities.

Treading On Sacred Ground: Congress's Power To Subject White House Advisers To Senate Confirmation, Douglas S. Onley

William & Mary Law Review

No abstract provided.

Exxon Shipping, The Power To Subpoena Federal Agency Employees, And The Housekeeping Statute: Cleaning Up The Housekeeping Privilege For The Chimney-Sweeper's Benefit, Jason C. Grech

William & Mary Law Review

No abstract provided.

The Constitution As An Obstacle To Government Ethics - Reformist Legislation After National Treasury Employees Union, George D. Brown

William & Mary Law Review

No abstract provided.

Who Decides If There Is "Triumph In The Ultimate Agony?" Constitutional Theory And The Emerging Right To Die With Dignity, Brian C. Goebel

William & Mary Law Review

No abstract provided.

Congressional-Executive Information Access Disputes: A Modest Proposal - Do Nothing, Neal Devins

Faculty Publications

No abstract provided.

Government Lawyers And The New Deal, Neal Devins

Faculty Publications

No abstract provided.

Restrictions On Law Enforcement Investigation And Prosecution Of Crime, Paul Marcus

Faculty Publications

No abstract provided.