Constitutional Law Commons^™

The "Dirty Little Secret": Why Class Actions Have Emerged As The Only Viable Option For Women Inmates Attempting To Satisfy The Subjective Prong Of The Eighth Amendment In Suits For Custodial Sexual Abuse, Amy Laderberg

William & Mary Law Review

No abstract provided.

The Moral Failure Of The Clear And Present Danger Test, David R. Dow

William & Mary Bill of Rights Journal

The clear and present danger test has been used for almost a century to determine the speech the government may restrain. This test assumes that at some point speech transforms into an act and at that moment the speech becomes punishable. Under the clear and present danger test, the First Amendment does not protect speech that is an incitement to imminent lawless action. Professor Dow suggests that the clear and present danger test protects too little speech. He posits that speech should be protected unless the following three conditions are met: (1) the speaker's specific intent in uttering the words …

Justice Or Injustice For The Poor?: A Look At The Constitutionality Of Congressional Restrictions On Legal Services, J. Dwight Yoder

William & Mary Bill of Rights Journal

Upon enacting the Legal Services Corporation Act in 1974, Congress created the Legal Services Corporation (LSC), which provides federal funding to grantees that perform legal services for low-income individuals. In recent years, Congress has enacted restrictions upon grantees' receipt of such federal funding, limiting the legal services these legal aid attorneys can provide to their clients. This move has sparked great debate. Proponents of the restrictions argue that they are needed to correct abuse and misuse of the legal services program, while opponents argue that the restrictions only harm low-income individuals.

In this Note, the author addresses this controversial issue …

The Constitution In Congress: Jefferson And The West, 1801-1809, David P. Currie

William & Mary Law Review

No abstract provided.

The Flawed Economics Of The Dormant Commerce Clause, Paul E. Mcgreal

William & Mary Law Review

No abstract provided.

Murder In The Abstract: The First Amendment And The Misappropriation Of Brandenburg, Amy K. Dilworth

William & Mary Bill of Rights Journal

When Paladin Enterprises published Hit Man, a manual about murder for hire, it knew and intended that the book would be used for such a purpose. When James Perry used the information contained in Hit Man to murder three innocent persons, he started a legal debate about the scope of First Amendment protections for books that instruct how to commit criminal acts. Many scholars and commentators indicated that Brandenburg v. Ohio contains the applicable constitutional standard; however, in litigation against Paladin, the survivors of the decedents challenged the conventional wisdom.

This Note examines the Brandenburg test for its applicability to …

Aggravating And Mitigating Factors: The Paradox Of Today's Arbitrary And Mandatory Capital Punishment Scheme, Jeffrey L. Kirchmeier

William & Mary Bill of Rights Journal

Over twenty years ago, the United States Supreme Court held that both mandatory capital sentencing schemes and total discretionary capital sentencing schemes violate the Eighth Amendment. According to Jeffrey Kirchmeier, the "guided discretion" capital sentencing scheme of sentencing factors that has developed, however, has the constitutional problems of both mandatory death penalties and unlimited discretion death penalties.

Justices Scalia, Blackmun, and Thomas have noted that the mandate of unlimited mitigating circumstances has resulted in an arbitrary system. Kirchmeier argues that today's sentencing scheme is arbitrary also because of undefined aggravating factors, unlimited nonstatutory aggravating factors, and victim impact evidence. According …

Board Of County Commissioners V. Umbehr: The Inadequacies Of Extending Pickering Analysis To Government Contractors, Luther D. Tupponce

William & Mary Bill of Rights Journal

This Note challenges the restrictive First Amendment free speech protection that the Supreme Court gave to government contractors in Board of County Commissioners v. Umbehr when it applied the Pickering balancing test, developed nearly thirty years ago in Pickering v. Board of Education in the context of government employees. It does so by first questioning whether the First Amendment free speech protections given to government employees should be similar for government contractors. It then explores whether the Pickering balancing test should be applied to cases involving government contractors as it was in Umbehr.

The author concludes that the Court improperly …

Why Now Is Not The Time For Constitutional Amendment: The Limited Reach Of City Of Boerne V. Flores, Kent Greenawalt

William & Mary Law Review

No abstract provided.

Two Section Twos And Two Section Fives: Voting Rights And Remedies After Flores, Pamela S. Karlan

William & Mary Law Review

No abstract provided.

Rfra, David P. Currie

William & Mary Law Review

No abstract provided.

Freedom From Persecution Or Protection Of The Rights Of Conscience?: A Critique Of Justice Scalia's Historical Arguments In City Of Boerne V. Flores, Michael W. Mcconnell

William & Mary Law Review

No abstract provided.

Judicial Supremacy And The Settlement Function, Robert F. Nagel

William & Mary Law Review

No abstract provided.

Why The Congress Was Wrong And The Court Was Right - Reflections On City Of Boerne V. Flores, Ira C. Lupu

William & Mary Law Review

No abstract provided.

Ad Hoc Adjudication: People V. Champion, Another Confusing Element In The Turmoil Following Minnesota V. Dickerson, Audra A. Dial

William & Mary Law Review

No abstract provided.

Losing Jerusalem - Rfra And The Vocation Of Legal Crusader, Steven D. Smith

William & Mary Law Review

No abstract provided.

Two Versions Of Judicial Supremacy, Mark Tushnet

William & Mary Law Review

No abstract provided.

City Of Boerne V. Flores: A Landmark For Structural Analysis, Marci A. Hamilton

William & Mary Law Review

No abstract provided.

The Religious Freedom Restoration Act Is A Constitutional Expansion Of Rights, Erwin Chemerinsky

William & Mary Law Review

No abstract provided.

How Not To Challenge The Court, Neal Devins

William & Mary Law Review

No abstract provided.

The Federalism Implications Of Flores, Stephen Gardbaum

William & Mary Law Review

No abstract provided.

Justice O'Conner's Dilemma: The Baseline Question, Suzanna Sherry

William & Mary Law Review

No abstract provided.

The Free Exercise Of Religion After The Fall: The Case For Intermediate Scrutiny, Rodney A. Smolla

William & Mary Law Review

No abstract provided.

Congress, The Court, And The Constitution: Hearing Before The Subcommittee On The Constitution Of The Committee On The Judiciary, House Of Representatives, One Hundred Fifth Congress, Second Session, Charles T. Canady, Robert C. Scott, Louis Fisher, David P. Currie, Neal Devins, Neil Kinkopf, Nadine Strossen, Matthew J. Franck, Robert L. Clinton, Henry J. Hyde, Melvin L. Watt

Congressional Testimony

No abstract provided.

Chancellor Kent And The Search For The Elements Of Impeachable Offenses, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Judicial Exclusivity And Political Instability, Neal Devins, Louis Fisher

Faculty Publications

No abstract provided.

Institutional Analysis And Physicians' Rights After Vacco V. Quill, Larry I. Palmer

Faculty Publications

No abstract provided.

The Narrow And Shallow Bite Of Romer And The Eminent Rationality Of Dual-Gender Marriage: A (Partial) Response To Professor Koppelman, Richard F. Duncan

William & Mary Bill of Rights Journal

In this response to Professor Koppelman, Professor Duncan takes issue with the assertions Koppelman makes in Romer v. Evans and Invidious Intent. Though Duncan agrees with Koppelman's summary of the rule of Romer and the ongoing effects of Bowers v. Hardwick, he rejects Koppelman's claims that laws that discriminate against gays will always be constitutionally doubtful because they disadvantage an unpopular class.

Duncan claims that Koppelman has tried, without success or authority, to fill in the "missing pages" left in Romer by the Supreme Court. Finally, he argues that traditional marriage laws are valid and will survive under Romer and …

Playing Defense, Robert F. Nagel

William & Mary Bill of Rights Journal

Noting that the Romer opinion condemns the motives behind Amendment 2 without pausing even briefly to examine the social context in which it was enacted, Professor Nagel describes the decision as a model of the intolerant impulse in action. He traces this impulse to the Justices' unwillingness to examine their own role--and that of the rest of the constitutional law establishment- in creating the underlying conditions that produced Amendment 2.

In order to identify those conditions, Professor Nagel analyzes the primary document used by Colorado for Family Values during its campaign on behalf of the initiative. He argues that this …

Romer V. Evans And Invidious Intent, Andrew Koppelman

William & Mary Bill of Rights Journal

In this Essay, Professor Koppelman argues that, notwithstanding numerous scholarly claims to the contrary, the Supreme Court's decision in Romer v. Evans was based on the invalidated law's impermissible purpose. Professor Koppelman examines the Court's understanding of the Fourteenth Amendment, and concludes that its current doctrine is designed to ferret out unconstitutional intent. Such impermissible intent, Koppelman argues, was evident in the law challenged in Romer. Nonetheless, Koppelman acknowledges, Romer is a hard case, and its precedential significance is unclear, particularly in light of Bowers v. Hardwick, which upheld the constitutionality of laws against homosexual sodomy. Laws that facially disadvantage …