Law Commons^™

Giving Dissenters Back Their Rights: How The White House Presidential Advance Manual Changes The First Amendment And Standing Debates, Kimberly Albrecht-Taylor

William & Mary Bill of Rights Journal

No abstract provided.

Gatekeeping Vs. Balancing In The Constitutional Law Of Elections: Methodological Uncertainty On The High Court, Christopher S. Elmendorf, Edward B. Foley

William & Mary Bill of Rights Journal

This Essay examines the methodological upheaval created by the quartet of constitutional election law cases decided during October Term 2007. Prior to this Term, the ascendant analytic approach called for a threshold characterization of the burden on the plaintiff's rights, which characterization determined whether the court would apply strict scrutiny or lax, rational-basis-like review. The characterization was generally formal in nature. But in light of the Supreme Court's latest decisions, it is now open to a lower court adjudicating a First Amendment or Equal Protection challenge to an election law-absent a Supreme Court precedent squarely on point- (1) to engage …

Reconstructing The Dormant Commerce Clause Doctrine, Brannon P. Denning

William & Mary Law Review

In this Article, I argue that the alleged incoherence and unpredictability of the dormant Commerce Clause doctrine (DCCD) is rooted in the Supreme Court's search, through the years, for a stable set of rules enabling it to distinguish permissible from impermissible state regulations of interstate commerce and commercial actors. Its lack of success, the Article argues, is due in large part to the Court's inability to settle on the constitutional command the doctrine was to enforce. Historically, the Court would promulgate a set of rules, apply them for a time, then alter or modify them as the rules became unsatisfactory. …

Possession Is Nine Tenths Of The Law: But Who Really Owns A Church's Property In The Wake Of A Religious Split Within A Hierarchical Church?, Meghaan Cecilia Mcelroy

William & Mary Law Review

No abstract provided.

Tempest In An Empty Teapot: Why The Constitution Does Not Regulate Gerrymandering, Larry Alexander, Saikrishna B. Prakash

William & Mary Law Review

Judges and scholars are convinced that the Constitution forbids gerrymandering that goes "too far"--legislative redistrictings that are too partisan, too focused on race, etc. Gerrymanders are said to be unconstitutional for many reasons-they dilute votes, they are anti-democratic, and they generate uncompetitive elections won by extremist candidates. Judges and scholars cite numerous clauses that gerrymanders supposedly violate- the Equal Protection Clause, the Guarantee Clause, and even the First Amendment. We dissent from this orthodoxy. Most of these claims rest on the notion that the Constitution establishes certain ideals about representation in legislatures and about the outcome and conduct of elections. …

Initiating A New Constitutional Dialogue: The Increased Importance Under Aedpa Of Seeking Certiorari From Judgments Of State Courts, Giovanna Shay, Christopher Lasch

William & Mary Law Review

The Antiterrorism and Effective Death Penalty Act (AEDPA) contains a provision restricting federal courts from considering any authority other than holdings of the Supreme Court in determining whether to grant a state prisoner's petition for habeas corpus. Through an empirical study of cert filings and cases decided by the Supreme Court, we assess this provision's impact on the development of federal constitutional criminal doctrine. Before AEDPA and other restrictions on federal habeas corpus, lower federal courts and state courts contributed to doctrinal development by engaging in a "dialogue" (as described by Robert M. Cover and T. Alexander Aleinikoff in a …

Death By A Thousand Cases: After Booker, Rita, And Gall, The Guidelines Still Violate The Sixth Amendment, David C. Holman

William & Mary Law Review

No abstract provided.

Freedom To Err: The Idea Of Natural Selection In Politics, Schools, And Courts, Paul D. Carrington

William & Mary Bill of Rights Journal

No abstract provided.

Changing State Laws To Prohibit The Display Of Hangman's Nooses: Tightening The Knot Around The First Amendment?, Allison Barger

William & Mary Bill of Rights Journal

No abstract provided.

Metaphors And Modalities: Meditations On Bobbit's Theory Of The Constitution, Ian C. Bartrum

William & Mary Bill of Rights Journal

No abstract provided.

Civil Procedure And The Establishment Clause: Exploring The Ministerial Exception, Subject-Matter Jurisdiction, And The Freedom Of The Church, Gregory A. Kalscheur

William & Mary Bill of Rights Journal

What sort of defense is provided by the ministerial exception to employment discrimination claims? The ministerial exception bars civil courts from reviewing the decisions of religious organizations regarding the employment of their ministerial employees. While the exception itself is widely recognized by courts, there is confusion with respect to the proper characterization of the defense provided by the exception: should it be seen as a subject matter jurisdiction defense, or as a challenge to the legal sufficiency of the plaintiff's claim? This Article argues that articulating the right answer to this question of civil procedure is crucial to a proper …

The Continuing Threshold Test For Free Exercise Claims, Andy G. Olree

William & Mary Bill of Rights Journal

When a claimant challenges some governmental law or action under the Free Exercise Clause of the First Amendment, courts have long required the claimant to make out a prima facie case that the government has burdened the exercise of the claimant's sincerely held religious beliefs. This requirement has been referred to as the threshold test for free exercise claims, since claimants must make this showing as a threshold matter before courts will proceed to evaluate the burden and the governmental interest at stake under some standard of scrutiny. This Article argues that although the Supreme Court of the United States …

Justifying Motive Analysis In Judicial Review, Gordon G. Young

William & Mary Bill of Rights Journal

Motives concern us in ordinary life and in the law of torts and crimes, and that concern is justified by consequentialist ethics. Despite occasional judicial protestations, motive analysis pervades large parts of constitutional law. Illegitimate motives aimed at suspect classes, or "designed to strike" at any number of rights identified as fundamental, presumptively invalidate the official actions that they animate. The consequentialist arguments for the use of motive review in this class of cases are relatively simple. Such illegitimate official motives tend to cause bad distributions of tangible benefits and burdens, or cause direct cognitive or emotional harm to the …

Religion At A Public University, Gerard V. Bradley

William & Mary Law Review

No abstract provided.

Why Church And State Should Be Separate, Erwin Chemerinsky

William & Mary Law Review

No abstract provided.

The Cross At College: Accomodation And Acknowledgment Of Religion At Public Universities, Ira C. Lupu, Robert W. Tuttle

William & Mary Bill of Rights Journal

No abstract provided.

Mothers Versus Babies: Constitutional And Policy Problems With Prosecutions For Prenatal Maternal Substance Abuse, Meghan Horn

William & Mary Journal of Race, Gender, and Social Justice

This note examines the constitutional and policy implications of criminal prosecutions for prenatal maternal substance abuse under statutes criminalizing drug delivery, child abuse, and manslaughter. Although only one of these convictions has been upheld in the thirty years since a prosecutor first brought such charges, prosecutors continue to propose new and increasingly inventive theories of prosecution. Not only do these cases present procedural due process, substantive due process, and equal protection problems, they also cannot be supported by public policy. The prosecutions are opposed by healthcare workers, pit the interests of mothers and unborn children against each other, and actually …

Falsity, Insincerity, And The Freedom Of Expression, Mark Spottswood

William & Mary Bill of Rights Journal

Three decades ago, the Supreme Court announced that false statements of fact are devoid of constitutional value, without providing either a reasoned explanation for that principle or any supporting citations. This assertion has become one of the most frequently repeated dogmas of First Amendment law and theory, endlessly repeated and never challenged. Disturbingly, this idea has provided the theoretic foundation for a regime in which some speakers can be penalized for even honestly believed factual errors. Even worse, this dogma is flat wrong.

False statements often have value in themselves, and we should protect them even in some situations where …

Higher Education, Harassment, And First Amendment Opportunism, Kenneth L. Marcus

William & Mary Bill of Rights Journal

No abstract provided.

Free Expression And Education: Between Two Democracies, Stephen M. Feldman

William & Mary Bill of Rights Journal

No abstract provided.

Introduction: Universities And The First Amendment, William P. Marshall

William & Mary Bill of Rights Journal

No abstract provided.

Intelligent Design In Public University Science Departments: Academic Freedom Or Establishment Of Religion, Frank S. Ravitch

William & Mary Bill of Rights Journal

No abstract provided.

Lest We Regress To The Dark Ages: Holding Voluntary Surgical Castration Cruel And Unusual, Even For Child Molesters, Catherine Rylyk

William & Mary Bill of Rights Journal

No abstract provided.

Political Judges And Popular Justice: A Conservative Victory Or A Conservative Dilemma?, George D. Brown

William & Mary Law Review

Most of the judges in America are elected. Yet the institution of the elected judiciary is in trouble, perhaps in crisis. The pressures of campaigning, particularly raising money, have produced an intensity of electioneering that many observers see as damaging to the institution itself. In an extraordinary development, four justices of the Supreme Court recently expressed concern over possible loss of trust in state judicial systems. Yet mechanisms that states have put in place to strike a balance between the accountability values of an elected judiciary and rule of law values of unbiased adjudication are increasingly invalidated by the federal …

Baghdad, Tokyo, Kabul….Constitution Making In Occupied States, Zachary Elkins, Tom Ginsburg, James Melton

William & Mary Law Review

No abstract provided.

A Constitution Between Past And Future, Kim Lane Scheppele

William & Mary Law Review

No abstract provided.

Constitution Writing In Post-Conflict Settings: An Overview, Jennifer Widner

William & Mary Law Review

No abstract provided.

Popular Authorship And Constitution Making: Comparing And Contrasting The Drc And Kenya, James Thuo Gathii

William & Mary Law Review

No abstract provided.

The Theocratic Challenge To Constitution Drafting In Post-Conflict States, Ran Hirschl

William & Mary Law Review

No abstract provided.

What's In A Name? Reflections On Timing, Naming, And Constitution-Making, Vicki C. Jackson

William & Mary Law Review

No abstract provided.