Law Commons^™

The Pluralistic Foundations Of The Religion Clauses, Steven H. Shiffrin

Cornell Law Faculty Publications

Contemporary Supreme Court interpretations suggest that the religion clauses are primarily rooted in the value of equality. The United States Supreme Court has argued that in the absence of discrimination against religion (or the presence of other constitutional values), there is no violation of the Free Exercise Clause when a statute inadvertently burdens religion. Similarly, equality values have played a strong role in the Court's Establishment Clause jurisprudence. Many distinguished commentators have pointed to the equality focus and have argued that it gives insufficient attention to the value of religious liberty. Professor Shiffrin argues that these commentators are right in …

Reflections On Brown And The Future, Oliver W. Hill Sr.

University of Richmond Law Review

No abstract provided.

"The House Was Quiet And The World Was Calm The Reader Became The Book", Burt Neuborne

Vanderbilt Law Review

Professor Neuborne argues that we err in reading the Bill of Rights "in splendid isolation" as a randomly ordered set of clause-bound norms. Instead, he argues that the disciplined order and placement of the thirty-three ideas in the Bill of Rights, especially the six textual ideas united in the First Amendment, reveals a deep contextual structure imposed by the Founders that sheds important light on the meaning of the constitutional text. He argues that the "vertical" order of the first ten amendments, as well as the "horizontal" order of ideas within each amendment, provides important clues to a judge seeking …

A Call To Leadership: The Future Of Race Relations In Virginia, Rodney A. Smolla

University of Richmond Law Review

No abstract provided.

Virginia's Next Challenge: Economic And Educational Opportunity, Mark R. Warner

University of Richmond Law Review

No abstract provided.

Brown And The Desegregation Of Virginia Law Schools, Carl W. Tobias

University of Richmond Law Review

No abstract provided.

The Forgotten Constitutional Right To Present A Defense And Its Impact On The Acceptance Of Responsibility-Entrapment Debate, Katrice L. Bridges

Michigan Law Review

This Note argues that Section 3El.1 of the Federal Sentencing Guidelines must be interpreted to allow defendants who claim entrapment at trial to remain eligible for the acceptance-of-responsibility adjustment. To interpret Section 3El.1 in any other way would run afoul of defendants' constitutional right to present a defense. Part I argues that the entrapment defense does not put factual guilt at issue; instead the entrapment defense challenges whether the statute should apply to the defendant's conduct. Part II contends that the legislative intent in creating the sentencing guidelines in general and the acceptance-of-responsibility adjustment in particular are furthered by requiring …

The Federalist Dimension Of Regulatory Takings Jurisprudence, Stewart E. Sterk

Articles

Conventional wisdom teaches that the Supreme Court's takings doctrine is a muddle. Appearances, however, are deceiving. The "property" protected by the Takings Clause is defined not by a single sovereign, but by the legislative enactments and judicial pronouncements of fifty separate states. As a result, federalism concerns - underappreciated in the takings literature - do and should play an important role in shaping the Court's takings doctrine. In particular, these concerns make it inappropriate for the Court to use the Takings Clause as a vehicle for articulating a comprehensive theory of the limits on government power to regulate land. This …

The Promise Of Equality: Reflections On The Post-Brown Era In Virginia, Robert R. Mehrige Jr.

University of Richmond Law Review

No abstract provided.

Identifying State Actors In Constitutional Litigation: Reviving The Role Of Substantive Context, Michael L. Wells

Scholarly Works

While most section 1983 suits are brought against local governments and officials, an increasing number of plaintiffs target private persons and businesses who have collaborated with government in one way or another. In such cases, plaintiffs claim that private entities have acted "under color of state law" in violation of the plaintiffs' rights. They must establish that the defendants are nonetheless "state actors" in order to prevail on the constitutional claims they raise. The broad range of cases includes, among others, efforts to obtain relief against creditors who use self-help remedies, litigation directed at persons who have cooperated with state …

Appointed To The Scientific Committee Of The European Centre For Life Sciences, Health, And The Courts At The Collegio Ghislieri At The University Of Pavia, Charles Baron

Charles H. Baron

No abstract provided.

Common Constitutional Law, A. Daniel Feldman

ExpressO

This essay deals with a branch of New York Times v. Sullivan which appeared to make the question of whether the words were libelous a federal issue. The line of cases ends with Masson v. New Yorker Magazine, which decides that the meaning of the words is not a federal issue, but cites approvingly all the prior cases, which do exactly that. The ambiguity of cases leaves unresolved the status of the rule which underlies New York Times, which is that judges, not juries, are to determine the facts in First Amendment cases.

From Carlin’S Seven Dirty Words To Bono’S One Dirty Word: A Look At The Fcc’S Ever-Expanding Indecency Enforcement Role , Faith Sparr

ExpressO

The manuscript entitled: From Carlin’s Seven Dirty Words to Bono’s One Dirty Word: A Look at the FCC’s Ever-Expanding Indecency Enforcement Role examines whether the FCC, in the years since the Supreme Court’s 1978 decision in FCC v. Pacifica, has exceeded the limited holding that the Court rendered in that seminal case. Initially, the article focuses on the Pacifica holding itself, reminding the reader of the narrowness of the decision and pointing out some interesting limitations that the FCC appears to have forgotten in its recent race to crack down on speech it deems indecent. From that initial examination, the …

Section 6: Federalism, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Wine Wars: The 21st Amendment And Discriminatory Bans To Direct Shipment Of Wine , Todd J. Zywicki

George Mason University School of Law Working Papers Series

This essay is actually a series of posts from the Volokh Conspiracy weblog (www.volokh.com) that discusses the policy and constitutional issues surrounding a question that the Supreme Court will hear this term, whether discriminatory barriers to the interstate direct shipment of wine are constitutional. Because of the timeliness of the issue, the essay is presented in this unusual and informal format so as to be available to the public more rapidly than through the traditional law review format. This essay” reviews the historical evidence and ratification history of the 21st Amendment, and concludes that the answer is unambiguously no.

The …

Towards An Establishment Clause Theory Of Race-Based Allocation After Grutter: Administering Race-Conscious Financial Aid, Maurice R. Dyson

ExpressO

The novel application of the Establishment Clause doctrine by way of analogy to race0based financial aid after Grutter and Grats, while not identical, speaks to real issue of neutrality that is implicit in the debate of administering race-based scholarships that should be truthfully acknowledged. There is no concern about improper university indoctrination of race as the Grutter court has already established race-based diversity as worthy of a compelling state interest. Moreover, there is no concern that a college or university would establish an imprimatur on race-based scholarships merely or solely because it identifies potential candidates meeting specified eligibility criteria which …

The Constitution In Two Dimensions: A Transaction Cost Analysis Of Constitutional Remedies. , Eugene Kontorovich

George Mason University School of Law Working Papers Series

This Article reveals the underappreciated role of liability rules in constitutional law. Conventional constitutional theory insists that constitutional entitlements require, by their nature, property rule protection. That is, they can only be taken with the owner's consent; nonconsensual takings can be enjoined. This Article shows that many constitutional values are in fact protected by liability rules, which allow for forced transfers followed by payment of compensation. Substantive entitlements form one dimension of constitutional law. The various ways in which they are protected against transfers form the second dimension. The full picture of constitutional law only emerges from looking at both. …

Statehood As The New Personhood: The Discovery Of Fundamental "States' Rights", Timothy Zick

William & Mary Law Review

No abstract provided.

Beyond Gay Rights: Lawrence V. Texas And The Promise Of Liberty, Philip Chapman

William & Mary Bill of Rights Journal

No abstract provided.

The Panda's Thumb: The Modest And Mercantilist Original Meaning Of The Commerce Clause, Calvin H. Johnson

William & Mary Bill of Rights Journal

No abstract provided.

Cross Burning, Hate Speech, And Free Speech In America, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Curriculum Development At A New Law School: Dismantling The Walls Of Separation, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Federal Circuit Reverses $37 Million Award To Fishing Vessel, Lance Young

Sea Grant Law Fellow Publications

No abstract provided.

Regulate, Don't Eliminate, 527s, Donald B. Tobin

Faculty Scholarship

No abstract provided.

Assessing The Constitutionality Of Laws That Are Both Content-Based And Content-Neutral: The Emerging Constitutional Calculus, Wilson R. Huhn

Indiana Law Journal

No abstract provided.

Encouraging Courage: Law's Response To Fear And Risk, William B. Fisch

Faculty Publications

Our three papers provide a helpful review of the many things that can go wrong with our system for the protection of civil liberties under the pressures of war or other emergencies. Professor Winfield focuses on the U.S. Attorney General, the non-judicial officer from whom the public might expect the highest fidelity to the law and the constitution. She offers a sobering perspective on the ways in which those expectations can be and have been disappointed. The star of her taxonomy, I take it, is the Leveler, who reaches an independent (and rights-protective!) view of the law and works to …

Structuring Sentencing: Apprendi, The Offense Of Conviction, And The Limited Role Of Constitutional Law, Benjamin J. Priester

Indiana Law Journal

No abstract provided.

An Examination And Analylsis Of The Equity And Adequacy Concepts Of Constitutional Challenges To State Education Finance Distribution Formulas, R. Craig Wood, Bruce D. Baker

University of Arkansas at Little Rock Law Review

No abstract provided.

Terrorism, Technology, And Information Privacy: Finding The Balance, Fred H. Cate

Articles by Maurer Faculty

No abstract provided.

Questioning Deference, Christina E. Wells

Faculty Publications

This article examines the accepted axiom that courts should defer to the government's actions during national security crises even when such actions potentially violate citizens' constitutional rights. The paper questions two assumptions underlying that axiom - first, that executive officials are best equipped to determine when security needs justify liberty infringements and, second, that judges are particularly unqualified to meddle in security issues, even when civil liberties are involved. Relying on psychological theories regarding the role that fear plays in skewing risk assessment and historical analyses of past crises, the paper argues that times of crisis lend themselves to unnecessary …