Law Commons^™

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. …

A Darwinist View Of The Living Constitution, Scott Dodson

Faculty Publications

The metaphor of a “living” Constitution imports terms from biology into law and, in the process, relies on biology for its meaning. A proper understanding of biology is therefore central to understanding the idea of “living” constitutionalism. Yet despite its rampant use by both opponents and proponents of living constitutionalism, and despite the current fervent debate over whether biology can be useful to the law, no one has evaluated the metaphor from a biological perspective. This Essay begins that inquiry in an interdisciplinary study of law, science, and philology. The Essay first evaluates the metaphor as it is currently used …

Equal Sentences For Unequal Participation: Should The Eighth Amendment Allow All Juvenile Murder Accomplices To Receive Life Without Parole?, Brian Gallini

Brian Gallini

A Darwinist View Of The Living Constitution, Scott Dodson

Scott Dodson

The metaphor of a “living" Constitution imports terms from biology into law and, in the process, relies on biology for its meaning. A proper understanding of biology is therefore central to understanding living constitutionalism. Yet despite its rampant use by both opponents and proponents of living constitutionalism, and despite the current fervent debate over whether biology can be useful to the law, no one has evaluated the metaphor from a biological perspective.

This Essay begins that inquiry in an interdisciplinary study of law, science, and philology. The Essay first evaluates the metaphor as it is currently used and concludes that …

Mcconnell V. Federal Election Commission: The Problem Of Eradicating Campaign Finance Corruption, Michelle C. Gabriel

Michelle C Gabriel

The article analyzes McConnell, the Supreme Court decision that upheld all major provisions of the Bipartisan Campaign Reform Act (BCRA) of 2002, and examines the four main empirical claims the Court makes therein: (1) Wealthy campaign donors are able to “buy” greater access to politicians with campaign contributions; (2) Limits on freedom to associate within party committees are necessary in order to prevent campaign finance abuses; (3) Reductions in campaign funding will not inhibit political campaigns; and (4) Those who purchase campaign advertisements must be identified, so voters are not misled by the advertisements’ messages. The first two claims are …

Dreams And Images: The Roles Of Particularism And Principlism In The Law, R George Wright, Faith A. Knotts

R. George Wright Professor

The term ‘particularism’ is rarely used in connection with the law, but the idea of ‘particularism’ itself is of great importance throughout the law. Particularism de-emphasizes the roles of principles, rules, standards, policies, formulas, and tests in the law. Instead, particularism emphasizes vivid and concrete analogies, hypotheticals, stories, images, instructive fables, parables, particular incidents, myths and legends, evocative dreams, and similar sorts of narratives.

This Article establishes the contrast between particularism and its opposite, principlism. The Article notes the contrast between these two approaches to the law, particularly in the vital area of the historical legal battle over slavery, segregation, …

Gender And Justice: Parity And The United States Supreme Court, Paula A. Monopoli

Paula A Monopoli

There is a deep concern among many American women that only one woman remains on the United States Supreme Court. When Justice Sandra Day O’Connor was sworn in on September 25, 1981, most people never imagined that twenty-five years later there would still be only one woman on the Court. It appears that it will be many more years before there is a critical mass of women sitting on the high court. Given its central role, the Court should better represent the gender balance in American society. In a number of other countries, voluntary or involuntary parity provisions have been …

Listener Interests In Compelled Speech Cases, Laurent Sacharoff

Laurent Sacharoff

The Lecture Notes Of St. George Tucker; A Framing Period View Of The Bill Of Rights, David T. Hardy

David T. Hardy

This article reflects a transcription of the lecture notes of St. George Tucker, relevant to the newly ratified Bill of Rights. Tucker lectured law at the College of William and Mary from 1790 to 1804, and was well informed on the legal events of his day, with a brother in the first Senate and a friend in the First House. Tucker's notes reflect an astonishingly modern, and broad, view of the Bill of Rights' protections. His notes recently came to some prominence, being debated last term by majority and dissent in District of Columbia v. Heller.

The Truth Be Damned: The First Amendment, Attorney Speech, And Judicial Reputation, Margaret C. Tarkington

Margaret C Tarkington

Throughout the United States, courts discipline and sanction attorneys who make disparaging remarks about the judiciary. Yet, in that context, state and federal courts have almost universally rejected the constitutional standard established by the Supreme Court in New York Times v. Sullivan for punishing speech regarding government officials. Indeed, some courts even deny attorneys the defense of truth. Attorneys have been punished even when they were not engaged in a representative capacity and regardless of the forum in which they made their statements (including to the press, in pamphlets, or even in personal letters). The punishment imposed for impugning judicial …

The Case For Prudential Standing, Joshua L. Sohn

Joshua L. Sohn

This article argues against current standing doctrine, under which plaintiffs must satisfy a variety of constitutional and non-constitutional (i.e., "prudential") requirements in order to sustain a federal lawsuit. Instead, this article contends that all standing requirements should be deemed prudential. There are several reasons for this. First, the text of the Constitution and the history of its drafting provide no support for the allegedly constitutional standing requirements. Second, when the Supreme Court has sought to justify the “constitutional” standing requirements over the years, it has repeatedly relied on prudential justifications. For instance, the Court has noted how the standing requirements …

What Is An Unconstitutional "Other Tax" On Voting? Construing The Twenty-Fourth Amendment, Allison Hayward

Allison Hayward

This Article looks closely at the 24th Amendment and the origin and application of “poll tax or other tax” (meant here to include any form of tax, fee or charge imposed as a precondition to voting), the history of anti-poll tax reform, the intended scope of such reforms, and suggest a way to decide what voting prerequisites could be unconstitutional “poll taxes.” The analysis in this Article isolates the question of defining “poll tax or other tax” under the 24th Amendment from what constitutes a severe burden or a “reasonable” requirement in equal protection doctrine. The 24th Amendment should be …

Critical Error, Bryan L. Adamson

Bryan L Adamson

Critical Error raises a novel double standard: while fact-specific trial court findings of actual malice are reviewed under the “independent judgment” standard (a wholesale re-weighting of the trial court record and decision) on appeal, intentional race discrimination findings are reviewed under the far more deferential Federal Rule of Civil Procedure 52 clear error standard. Both legal concepts are arrived at through assessing state-of-mind determinations; both directly trigger constitutional proscriptions. Only actual malice, however, is classified as a constitutional fact, thus taking it out of the more deferential standard of review. The Supreme Court has failed to clarify this important procedural …

A Fighting Chance: An Analysis Of The Role Of Social Science Evidence In Higher Education Affirmative Action And K-12 Voluntary Desegregation Cases, Crystal Gafford Muhammad

Crystal Gafford Muhammad

The present inquiry focuses on the role of social science evidence contemporarily, using observations from judicial opinions in race conscious admissions cases. Using a set of judicial opinions from K-12 voluntary desegregation and higher education affirmative action in admissions, I use legal and statistical analysis to argue that social science data presented into evidence is of limited effect. In fact, I find judicial political philosophy is the greatest predictor of opinions in this area of law. However, the question is not whether social science evidence is influential or even persuasive, but whether it is useful in politically contentious cases. It …

Religion And American Politics: Three Views Of The Cathedral, Paul Horwitz

Paul Horwitz

The relationship between religion and politics in the American social and constitutional structure is an endlessly contested and debated one. Most of that discussion, taking place as it has in an academic environment, has had a decidedly abstract air. In this paper, I shift the focus from the abstract to the practical by looking at the most practical and close-to-the-ground participants in the debate over religion and politics: the political candidates themselves. I offer a close reading of speeches by three of the most prominent political candidates to offer an examination of religion’s role in politics: John F. Kennedy, Mitt …

The Impact Of Information Overload On The Capital Jury's Ability To Assess Aggravating And Mitigating Factors, Michael J.Z. Mannheimer, Katie Morgan

Michael J.Z. Mannheimer

Since 1976, the U.S. Supreme Court has required that death penalty regimes meet two requirements. First, in order to minimize arbitrariness in the imposition of the death penalty, States must reserve capital punishment to a narrow class of offenders, those most deserving of death. States have done so by requiring that the prosecution prove at least one aggravating factor, i.e., some circumstance that separates the capital defendant on trial from those ineligible to be executed. Second, States must allow for individualization in sentencing by permitting the defendant to introduce mitigating evidence in order to persuade the jury that he is …

The Story Of Article 9 Of The Japanese Constitution, Kenneth L. Port

Kenneth L. Port

Abstract Japan has been experiencing an odd constitutional challenge for over 60 years. In Article 9 of the Constitution, which Americans drafted after World War II, Japan renounces belligerent war. However, within the society, multiple meanings of Article 9 have developed. Each “story” of Article 9 seems as legitimate as the next because the Supreme Court has abdicated their responsibility to resolve this important constitutional issue by calling Article 9 a non-justiciable, political question. Therefore, the only entity that has been silent on what Article 9 means is the Supreme Court. As a result, there are many, many interpretations of …

The Aumfai, Resolution 1790, Sofas, And Base Agreements: How Does The U.S. Stay In Iraq?, Eric G. Roscoe

Eric G. Roscoe

This Comment will address the authorization problems that might arise with the deployment of troops to Iraq. The current congressional authorization permits the U.S. to operate in Iraq pursuant to Security Council Resolution 1790. Resolution 1790 will expire in December of 2008 and Iraq has no desire to renew that resolution. The Bush administration is currently negotiating a bilateral Status of Forces Agreement (“SOFA”), in order to provide the U.S. international authorization for troops in Iraq. This Comment argues, counter to the administration, that the U.S. should pursue the negotiation of a pseudo-base agreement with Iraq in addition to the …

"Securing" The Nation: Law, Politics, And Organization At The Federal Security Agency, 1939-1953, Mariano-Florentino Cuellar

Mariano-Florentino Cuellar

American public law is affected by two important dynamics impacting the relationship between citizens and their government: how the executive branch defines national security, and how politicians compete to secure control of the vast public organizations through which governments implement the law. This article analyzes the intersection of these dynamics by investigating the now-forgotten history of the U.S. Federal Security Agency (FSA) and drawing perspectives from separation of powers, organization theory, and the study of American political development. In 1939 the Roosevelt White House overcame strong political opposition to centralize vast legal responsibilities within the FSA. Soon after its creation, …

Pole Dancing: The New Pilates?, Timothy Zick

Popular Media

No abstract provided.

When Churches Divide: On Neutrality, Deference, And Unpredictability, Mark Strasser

Mark Strasser

Predictions that the Anglican Communion would be torn asunder have proven false, at least for now. Nonetheless, continuing disagreements about whether Bishop Gene Robinson should be a bishop and about whether same-sex unions should be recognized provide an ever-present reason for a possible break within that Communion. Were there such a break, there might well be numerous suits regarding the ownership of various properties.

Historically, churches have split off from their denominational affiliations for a whole host of reasons including disagreements over property ownership, church leadership, or member equality. When such divisions take place, the ownership of particular buildings or …

Mixed Messages: The Supreme Court’S Conflicting Decisions On Juries In Death Penalty Cases, Ken Miller, David Niven

Ken Miller

No abstract provided.

The Court Says No To Incorporation Rebound: Virginia V. Moore, Morris B. Hoffman

Morris B. Hoffman

Abstract: “In this article, Judge Hoffman analyzes the history of incorporation and of the common law arrest authority, in an attempt to demonstrate that the actual manner in which incorporated rights have been thrust upon the states remains a controversial and difficult topic. The Court’s opinion this Term in Virginia v. Moore teaches us that it remains unwilling to re-examine incorporation’s federal hegemony, and in fact that it is so unwilling to re-open the wounds of incorporation that it will instead tolerate serious integrative problems when the Bill of Rights clashes with state common law that pre-dates the constitutional settlement.”

The Irresistible Force, Bruce A. Antkowiak

Bruce A Antkowiak

This article calls for the reformation of the doctrine that permits a legislature to assign to a defendant the burden of proving an issue in a criminal case to avoid conviction. It argues that such a doctrine violates the basic norms of the Constitution and the “jury right” that is at its core. That right includes the institution of the jury trial, the presumption of innocence and the burden on the government to prove its case beyond a reasonable doubt. It is violated by such a burden assignment just as the Apprendi line of cases holds that the shifting of …

Of Persons And Prenatal Humans: Why The Constitution Is Not Silent On Abortion, Lawrence Nelson

Lawrence J Nelson

Many jurists and legal commentators have concluded that the Constitution does not protect a woman’s right to terminate a pregnancy because nothing in the Constitution’s text and no principle or rule derived from its structure, internal logic, or propositions supports striking down restrictive legislation on abortion. In short, Roe v. Wade, Casey v. Planned Parenthood, and their progeny have been wrongly decided because the Constitution has absolutely no bearing on abortion other than to leave it to the legislative branch.

The conclusion that the Constitution is silent on abortion is false because the Constitution, in the text of the Fourteenth …

The Emergence Of Transnational Constitutionalism: Its Features, Challenges And Solutions, Wen-Chen Chang, Jiunn-Rong Yeh

Wen-Chen Chang

Globalization and regional remapping have made unprecedented challenges to traditional understandings of constitutional and international laws. Not only constitutions may function across national borders but also international treaties and regional cooperative frameworks may deliver constitutional or quasi-constitutional functions. This paper aims at theorizing recent developments of transnational constitutionalism by examining its features, functions and characteristics. We find that transnational constitutionalism features transnational constitutional arrangements, transnational judicial dialogues and global convergence of national constitutions. Notwithstanding main functions in facilitating a global market, the development of transnational constitutionalism nevertheless undermines accountability, democracy and rule of law at both domestic and transnational levels. …

Análisis Económico De La Constitución Política, Fernando Castillo Cadena

Fernando Castillo Cadena

No abstract provided.

The Political Origins Of Secular Public Education: The New York City School Controversy, 1840-1842, Ian C. Bartrum

Ian C Bartrum

THE ORIGINS OF SECULAR PUBLIC EDUCATION: THE NEW YORK SCHOOL CONTROVERSY, 1840-1842 As the title suggests, this article explores the historical origins of secular public education, with a particular focus on the controversy surrounding the Catholic petitions for school funding in nineteenth-century New York City. The article first examines the development of Protestant nonsectarian common schools in the northeast, then turns to the New York controversy in detail, and finally explores that controversy’s legacy in state constitutions and the Supreme Court. It is particularly concerned with two ideas generated in New York: (1) Bishop John Hughes’ objection to nonsectarianism as …

Judging In Chambers: The Powers Of A Single Justice Of The Supreme Court, Daniel M. Gonen

Daniel Gonen

A relatively obscure power of individual federal judges is the power to grant interim relief to a litigant pending appellate review of a lower court’s judgment or order. Individual judges routinely use this power, exercising virtually unfettered discretion to control the interim outcome of cases during the months and years it can take for the appellate process to conclude. In some cases, an individual judge has the power to decide if a case will be kept in a reviewable posture at all. This article explores this power, largely focusing on the Supreme Court level, and offers a critical assessment of …

Separation Of Powers In The Hood, Clif Bennette

Clif Bennette

Explores whether local courts may order district attorneys to conduct sequential rather than traditional simultaneous lineups.