Constitutional Law Commons^™

Beyond The Right To Counsel: Increasing Notice Of Collateral Consequences, Brian M. Murray

University of Richmond Law Review

This article responds to these questions by focusing on the primary roots of this justice issue, namely the prevalence of guiltypleas and the continued efforts of legislatures to increase the life- long price of a conviction. Part I begins with a discussion of these practical realities within the criminal justice system. Part II then examines the law of guilty pleas under the Fifth Amendment, including constitutional standards for valid pleas, and how current jurisprudence fails to account for the collateral consequences mentioned in Part I. Part II also discusses the right to effective assistance of counsel under the Sixth Amendment, …

A Survey Of The History Of The Death Penalty In The United States, Sheherezade C. Malik, D. Paul Holdsworth

University of Richmond Law Review

No abstract provided.

A Shot In The Dark: Why Virginia Should Adopt The Firing Squad As Its Primary Method Of Execution, P. Thomas Distanislao

University of Richmond Law Review

No abstract provided.

Lethal Injections: States Medicalize Execution, Joel B. Zivot

University of Richmond Law Review

No abstract provided.

Has The "Machinery Of Death" Become A Clunker?, Stephen F. Smith

University of Richmond Law Review

No abstract provided.

Death Penalty Drugs And The International Moral Marketplace, James Gibson, Corinna Barrett Lain

Law Faculty Publications

Across the country, executions have become increasingly problematic as states have found it more and more difficult to procure the drugs they need for lethal injection.At first blush, the drug shortage appears to be the result of pharmaceutical industry norms; companies that make drugs for healing (mostly in Europe) have refused to be merchants of death. But closer inspection reveals that European governments are the true change agents here. For decades, those governments have tried-and failed-to promote abolition of the death penalty through traditional instruments of international law. Turns out that the best way to export their abolitionist norms was …

Telescoping And Collectivizing Religious Free Exercise Rights, Henry L. Chambers Jr.

Law Faculty Publications

If courts are willing to expand religious liberty so that people may be allowed to choose-on the basis of their own religious beliefs-whether certain laws will apply to non-religious entities they create, those courts should take that step very carefully. This Paper explores the issue and pro- ceeds as follows. Part I discusses three recent Supreme Court cases that il- luminate the telescoping and the collectivization of free exercise rights. Part II considers problems that accompany telescoping and collectivizing free exercise rights. Part III suggests how courts should critically evaluate the telescoping and collectivizing of free exercise rights. This Paper …

In The Beginning There Was None: Supreme Court Review Of State Criminal Prosecutions, Kevin C. Walsh

Law Faculty Publications

This Article challenges the unquestioned assumption of all contemporary scholars of federal jurisdiction that section 25 of the Judiciary Act of 1789 authorized Supreme Court appellate review of state criminal prosecutions. Section 25 has long been thought to be one of the most important provisions of the most important jurisdictional statute enacted by Congress. The Judiciary Act of 1789 gave concrete institutional shape to a federal judiciary only incompletely defined by Article III. And section 25 supplied a key piece of the structural relationship between the previously existing state court systems and the new federal court system that Congress constructed …

Testing Sex, Rachel Rebouché

University of Richmond Law Review

No abstract provided.

Same-Sex Marriage And Due Process Traditionalism, Ronald Turner

University of Richmond Law Review

No abstract provided.

God, Civic Virtue, And The American Way: Reconstructing Engel, Corinna Barrett Lain

Law Faculty Publications

If ever a decision embodied the heroic, counter majoritarian function we romantically ascribe to judicial review, it was the 1962 decision that struck down school prayer-Engel v. Vitale. Engel provoked more outrage, more congres- sionalattemptsto overturnit, andmoreattackson theJusticesthanperhapsany other decision in Supreme Court history. Indeed, Engel's counter majoritarian narrative is so strong that scholars have largely assumed that the historical record supports our romanticized conception of the case.Itdoesnot. Usingprimary source materials, this Article reconstructs the story of Engel, then explores the implicationsof this reconstructednarrative. Engel is not the countermajoritarian case it seems, but recognizing that allows us to see Engel …

Executive Privilege As Constitution Common Law: Establishing Ground Rules In Political-Branch Information Disputes, Riley T. Keenan

Law Faculty Publications

In December 2010, U.S. Customs and Border Patrol Agent Brian Terry was killed in a gun battle along the border between the United States and Mexico. Police traced two AK-47 assault rifles found at the scene to Jaime Avila, whom officials at the U.S. Bureau of Alcohol, Tobacco, and Firearms (ATF) had previously suspected of purchasing weapons in the United States on behalf of “violent Mexican drug trafficking organizations.” Instead of arresting Avila and a number of other “straw purchasers,” however, ATF allowed him to continue buying guns in order to trace his purchases to a “large-scale gun trafficking organization.” …

The Problems Inherent In Litigating Employer Free Exercise Rights, Henry L. Chambers Jr.

Law Faculty Publications

This brief Article proceeds in four parts. Part I discusses the Supreme Court's recent cases that address employer free exercise rights. Part II notes problems that accompany providing free exercise rights to employers. Part III explores the expansion of employer prerogative in the context of providing employers additional free exercise rights. Part IV considers problems that arise when employee rights are not deemed central to litigation regarding employer free exercise rights. The Article concludes by proposing a refraining of the free exercise issue that will consider how to account for the interests of the employer, its stakeholders, and its employees …

Abortion And The Constitutional Right (Not) To Procreate, Mary Ziegler

University of Richmond Law Review

No abstract provided.

Observations On Macdonald V. Moose, Kevin C. Walsh

Law Faculty Publications

In MacDonald v. Moose, a split panel of the U.S. Court of Appeals for the Fourth Circuit granted a petition for a writ of habeas corpus to undo the state criminal conviction of an adult for soliciting oral sex from a minor. Based on Lawrence v. Texas, the court held a longstanding Virginia prohibition of bestiality and sodomy to be partially facially unconstitutional. Its decision left the bestiality prohibition untouched while holding the sodomy prohibition completely unenforceable, even as applied in cases involving minors.

The panel majority misapplied the deferential standard of review required by Congress for federal habeas …

The Purpose Of The Fourth Amendment And Crafting Rules To Implement That Purpose, Thomas K. Clancy

University of Richmond Law Review

No abstract provided.

Lighting A Fire Under Free Speech: The Fda's Graphic Attempts To Reduce Smoking Rates, Ashley Peterson

University of Richmond Law Review

No abstract provided.

The Cost Of Judicial Error: Stare Decisis And The Role Of Normative Theory, Kurt T. Lash

Law Faculty Publications

The Supreme Court of the United States has long embraced the doctrine of stare decisis as an appropriate consideration any time the Court considers overruling past precedent. However, because the Court's actual application of the doctrine has been both sporadic and seemingly inconsistent, some scholars (and Justices) have accused the Court of methodological hypocrisy and bad faith. Much of this criticism assumes that, if members of the Supreme Court find certain rule of law values dispositive in one case, they should find those same considerations dispositive in all cases. Failure to do so suggests either incompetence or insincerity. This Article …

The Supreme Court Chipping Away At Title Vii: Strengthening It Or Killing It?, Henry L. Chambers, Jr.

Law Faculty Publications

Whether the Court's chipping away at Title VII is an attempt to make Title VII into a 21st century diamond, or an attempt to make it a 21st century pile of diamond dust, or merely an attempt to interpret Title VII consistent with its text is a matter of opinion. This Article explores how the Court is interpreting and reinterpreting Title VII and necessarily considers whether the Court's reinterpretation will likely reinvigorate or damage Title VII' s broad goal of workplace equality. This Article tentatively considers what may be next for Title VII. Part I briefly discusses Title VII's scope. …

The Sum Of All Delegated Power: A Response To Richard Primus, The Limits Of Enumeration, Kurt T. Lash

Law Faculty Publications

In his provocative article, The Limits of Enumeration, Richard Primus rejects what he calls the “internal-limits canon” and challenges the assumption that the powers of Congress do not add up to a general police power, such that “there are things Congress cannot do, even without reference to affirmative prohibitions like those in the Bill of Rights.” Primus does not claim that federal power actually does amount to a general police power, only that it might. His principal claim is that nothing in the theoretical nature of enumerated power requires an a priori limit on the aggregate scope of delegated authority. …

Originalism All The Way Down?, Kurt T. Lash

Law Faculty Publications

In their new book, Originalism and the Good Constitution, John McGinnis and Michael Rappaport attempt to vanquish what they call constructionist originalism with an approach that I call methodist originalism. Unlike constructionist theories, which allow for non-originalist construction of underdetermined texts, methodist originalism proposes filling in the historical gaps with what McGinnis and Rappaport claim were the originally accepted methods of interpretation. This is originalism all the way down.

It’s a creative effort, and one that appropriately rejects some of the more latitudinous originalist theories currently in play. Unfortunately, the same history McGinnis and Rappaport rely upon fatally undermines …

Article I Section 13 Of The Virginia Constitution: Of Militias And An Individual Right To Bear Arms, Hon. Stephen R. Mccullough

University of Richmond Law Review

No abstract provided.

Commonwealth And Constitution, Robert S. Claiborne Jr.

University of Richmond Law Review

No abstract provided.

Why Federal Rule Of Evidence 403 Is Unconstitutional, And Why That Matters, Kenneth S. Klein

University of Richmond Law Review

No abstract provided.

The Oath: The Obama White House And The Supreme Court By Jeffrey Toobin (Book Review), John Paul Jones

Law Faculty Publications

For anyone with an interest in the politics of courts, Jeffrey Toobin’s The Oath is a good read. Laypersons might see it as a busman’s holiday for lawyers working in American appellate courts, but NAACA members surely appreciate more than most how unique a judicial institution is the Supreme Court of the United States. Thus, there is much to which those working backstage in other venues can relate, but much more offering them frissons of the unusual.

The Rule Of Law, Constitutional Reform, And The Death Penalty In The Gambia, Andrew Novak

Richmond Journal of Global Law & Business

No abstract provided.

Back To The Bad Old Days: President Putin's Hold On Free Speech In The Russian Federation, Rebecca Favret

Richmond Journal of Global Law & Business

No abstract provided.

Resolution Vi: The Virginia Plan And Authority To Resolve Collective Action Problems Under Article I, Section 8, Kurt T. Lash

Law Faculty Publications

The article presents on the general principles of limited enumerated federal power followed by the courts of the U.S. used for determining scope of national authority. The declaration of Resolution VI under which the U.S. Congress has the power for regulating collective action problems having national importance is discussed. The historical evidences of Resolution VI, the debates related to ratification and the errors in historical facts are also discussed.

Lincoln, The Emancipation Proclamation And Executive Power, Henry L. Chambers, Jr.

Law Faculty Publications

This Essay explores whether President Lincoln's Emancipation Proclamation, freeing all slaves held in areas designated by the President to be under rebellion onJanuary 1, 1863, could be justified as an exercise of his power under the Take Care Clause. Part I of this Essay discusses the legislation that preceded the Emancipation Proclamation. Part II discusses the Emancipation Proclamation. Part III discusses the Take Care Clause and how it might authorize significant parts of the Emancipation Proclamation, if not the entire document.

Watching The Watchers, Ronald J. Bacigal

Law Faculty Publications

This article focuses on the threat that increasingly sophisticated technology can pose to individual privacy. However, the author would like to provide the “yin to the yang” and point out the obvious: technology itself is not the culprit, because it is a double-edged sword, a tool that can be used to protect as well as invade privacy. We need not endorse the single-minded approach of WikiLeaks to recognize the benefits that occur when technology discloses government cover-ups or simply provides accurate information where none previously existed.