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Full-Text Articles in Law
Uniformity In Constitutional Interpretation And The Background Right To Effective Democratic Governance, Donald L. Beschle
Uniformity In Constitutional Interpretation And The Background Right To Effective Democratic Governance, Donald L. Beschle
Donald L. Beschle
No abstract provided.
What Did They Mean?: How Principles Of Group Communication Can Inform Original Meaning Jurisprudence And Address The Problem Of Collective Intent, W. Matt Morgan
William & Mary Bill of Rights Journal
No abstract provided.
Magic Words, Kiel Brennan-Marquez
Magic Words, Kiel Brennan-Marquez
William & Mary Bill of Rights Journal
Broadly speaking, this Article has two goals. The first is to demonstrate the prominence of functionalism in the interpretive practices of the Supreme Court. Reading a case like NFIB, it would be easy to conclude that the tension between labels and function reflects a deep rift in our legal order. On reflection, though, the rift turns out to be something of a mirage. While judicial opinions do occasionally employ the rhetoric of label-formalism, we are all functionalists at heart.
The Article’s second goal is to explore two exceptions to this norm. One is a faux exception—an exception to functionalism that …
Ohio V. Clark: Testimonial Statements Under The Confrontation Clause, Mesha Sloss
Ohio V. Clark: Testimonial Statements Under The Confrontation Clause, Mesha Sloss
Duke Journal of Constitutional Law & Public Policy Sidebar
In Crawford v. Washington, the Supreme Court declared that an accused right under the Constitution to confront the witnesses against him applied only to “testimonial statements.” That decision, however, did not attempt to fully define the scope of testimonial statements. This commentary analyzes Ohio v. Clark, a case which will decide the question of whether statements made by a child to a person with a duty to report allegations of child abuse are testimonial statements. In this case a young child was questioned at school by a teaching assistant about his injuries. This statement was then offered in …
Keeping Civil Rights Debates Civil: Removing Opportunities For Prejudice, Steven Saracco
Keeping Civil Rights Debates Civil: Removing Opportunities For Prejudice, Steven Saracco
Duke Journal of Constitutional Law & Public Policy Sidebar
Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of religion in employment decisions made by private employers. This commentary analyzes Equal Employment Opportunity Commission v. Abercrombie & Fitch, a case before the Supreme Court on the issue of whether a job applicant bears the burden of expressly notifying an employer of a conflict between the applicant’s religious beliefs and the employer’s policies before the employer must offer a reasonable accommodation. This case deals with a Muslim woman who was denied employment at a clothing store because her headdress was deemed to be a …
Zivotofsky V. Kerry: Of Passports, Politics, And Foreign Policy Powers, Cara J. Grand
Zivotofsky V. Kerry: Of Passports, Politics, And Foreign Policy Powers, Cara J. Grand
Duke Journal of Constitutional Law & Public Policy Sidebar
This commentary profiles the upcoming Supreme Court decision in Zivotofsky v. Kerry, which will decide, for the first time in United States history, the dividing line between legislative and executive authority to recognize foreign nations. Though it emanates from a seemingly-benign passport disagreement about a place-of-birth designation, this case will address an unprecedented and extremely controversial issue about separation of powers that has somehow evaded a Supreme Court decision. The Author profiles the case history and applicable legal precedent and analyzes the arguments for both sides before recommending that the Court should not find the President's power in this …
Embracing Administrative Constitutionalism, Bertrall L. Ross
Embracing Administrative Constitutionalism, Bertrall L. Ross
Bertrall L Ross
Administrative agencies engage in constitutionalism. They resolve questions of statutory meaning and scope that implicate constitutional questions. Even when agencies do not consciously set out to weigh in on constitutional
questions, by interpreting and applying statutes that rest on constitutional values, agencies elaborate constitutional meaning.
Should courts and theorists embrace or resist administrative
constitutionalism? For those who believe that the courts are the exclusive and final interpreters of the Constitution, it seems natural to oppose it. Thus, over the past forty years, the Supreme Court has resisted administrative constitutionalism. When agencies elaborate constitutional meaning in their interpretation of statutes, the …