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Full-Text Articles in Law
Gatekeeping Vs. Balancing In The Constitutional Law Of Elections: Methodological Uncertainty On The High Court, Christopher S. Elmendorf, Edward B. Foley
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 …
Tempest In An Empty Teapot: Why The Constitution Does Not Regulate Gerrymandering, Larry Alexander, Saikrishna B. Prakash
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. …
Freedom To Err: The Idea Of Natural Selection In Politics, Schools, And Courts, Paul D. Carrington
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.
The Continuing Threshold Test For Free Exercise Claims, Andy G. Olree
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 …
Whither Sexual Orientation Analysis?: The Proper Methodology When Due Process And Equal Protection Intersect, Sharon E. Rush
Whither Sexual Orientation Analysis?: The Proper Methodology When Due Process And Equal Protection Intersect, Sharon E. Rush
William & Mary Bill of Rights Journal
This Article suggests that there is Proper Methodology that courts apply when reviewing cases at the intersection of due process and equal protection. Briefly, courts operate under a rule that heightened review applies if either a fundamental right or a suspect class is involved in a case, and that rational basis review applies if neither is involved (the "Rule"). Two primary exceptions to the Rule exist, and this Article identifies them as the "Logical" and "Ill Motives" Exceptions. The Logical Exception applies when a court need not apply heightened review because a law fails rational basis review. The Ill Motives …
10 Years Out Of Step & Out Of Line: Florida’S Statutory Ban Of “Lesbi-Gay Adoption” Violates The Adoption And Safe Families Act Of 1997 (Asfa), Cynthia G. Hawkins-León, Anesha Worthy
10 Years Out Of Step & Out Of Line: Florida’S Statutory Ban Of “Lesbi-Gay Adoption” Violates The Adoption And Safe Families Act Of 1997 (Asfa), Cynthia G. Hawkins-León, Anesha Worthy
University of Maryland Law Journal of Race, Religion, Gender and Class
No abstract provided.