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2008

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Articles 91 - 120 of 749

Full-Text Articles in Constitutional Law

The Continuing Threshold Test For Free Exercise Claims, Andy G. Olree Oct 2008

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 …

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Justifying Motive Analysis In Judicial Review, Gordon G. Young Oct 2008

Justifying Motive Analysis In Judicial Review, Gordon G. Young

William & Mary Bill of Rights Journal

Motives concern us in ordinary life and in the law of torts and crimes, and that concern is justified by consequentialist ethics. Despite occasional judicial protestations, motive analysis pervades large parts of constitutional law. Illegitimate motives aimed at suspect classes, or "designed to strike" at any number of rights identified as fundamental, presumptively invalidate the official actions that they animate. The consequentialist arguments for the use of motive review in this class of cases are relatively simple. Such illegitimate official motives tend to cause bad distributions of tangible benefits and burdens, or cause direct cognitive or emotional harm to the …

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Civil Procedure And The Establishment Clause: Exploring The Ministerial Exception, Subject-Matter Jurisdiction, And The Freedom Of The Church, Gregory A. Kalscheur Oct 2008

Civil Procedure And The Establishment Clause: Exploring The Ministerial Exception, Subject-Matter Jurisdiction, And The Freedom Of The Church, Gregory A. Kalscheur

William & Mary Bill of Rights Journal

What sort of defense is provided by the ministerial exception to employment discrimination claims? The ministerial exception bars civil courts from reviewing the decisions of religious organizations regarding the employment of their ministerial employees. While the exception itself is widely recognized by courts, there is confusion with respect to the proper characterization of the defense provided by the exception: should it be seen as a subject matter jurisdiction defense, or as a challenge to the legal sufficiency of the plaintiff's claim? This Article argues that articulating the right answer to this question of civil procedure is crucial to a proper …

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Something To Talk About: Is There A Charter Right To Access Government Information?, Vincent Kazmierski Oct 2008

Something To Talk About: Is There A Charter Right To Access Government Information?, Vincent Kazmierski

Dalhousie Law Journal

Can sections 2(b) and 3 of the Canadian Charter of Rights and Freedoms be interpreted to protect a constitutional right of access to government information? The author argues that the constitutional principle of democracy provides a foundation for judicial recognition of such a constitutional right of access even though the inclusion ofan explicit right to access to government information was rejected during the process of drafting the Charter Given that the Supreme Court of Canada's section 2(b) and 3 jurisprudence has been informed by the principle of democracy, the application of the principle may now guide the Court to include …

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An Originalism For Foreign Affairs, Ingrid Wuerth Oct 2008

An Originalism For Foreign Affairs, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

Legal scholarship on foreign affairs frequently focuses on the Constitution's text and original meaning, but generally does not fully engage debates about originalism as a method of modern constitutional interpretation. For its part, much of the scholarship defending originalism as a methodology has said little explicitly about foreign affairs. This short symposium contribution describes three contemporary normative arguments in favor of originalism - those advanced by Randy Barnett, Keith Whittington, and John McGinnis and Michael Rappaport - and then considers their application to foreign affairs. It concludes that these arguments are at best underdeveloped and at worst weak when it …

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Exploring The Use Of The Word "Citizen" In Writings On The Fourth Amendment, M. Isabel Medina Oct 2008

Exploring The Use Of The Word "Citizen" In Writings On The Fourth Amendment, M. Isabel Medina

Indiana Law Journal

Symposium: Latinos and Latinas at the Epicenter of Contemporary Legal Discourses. Indiana University School of Law-Bloomington, March 2007.

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The Ninth Amendment And Individual Rights: A Reply To Professor Mcaffee, Daniel A. Farber Oct 2008

The Ninth Amendment And Individual Rights: A Reply To Professor Mcaffee, Daniel A. Farber

Nevada Law Journal

No abstract provided.

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Danforth, Retroactivity, And Federalism, J. Thomas Sullivan Oct 2008

Danforth, Retroactivity, And Federalism, J. Thomas Sullivan

Law Faculty Scholarship

No abstract provided.

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Death By A Thousand Cases: After Booker, Rita, And Gall, The Guidelines Still Violate The Sixth Amendment, David C. Holman Oct 2008

Death By A Thousand Cases: After Booker, Rita, And Gall, The Guidelines Still Violate The Sixth Amendment, David C. Holman

William & Mary Law Review

No abstract provided.

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Tempest In An Empty Teapot: Why The Constitution Does Not Regulate Gerrymandering, Larry Alexander, Saikrishna B. Prakash Oct 2008

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. …

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Errors, Omissions, And The Tennessee Plan, Brian T. Fitzpatrick Oct 2008

Errors, Omissions, And The Tennessee Plan, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

In the Spring 2008 issue of the Tennessee Law Review, I wrote an essay questioning whether Tennessee's merit system for selecting appellate judges - the Tennessee Plan - satisfies the requirements of the Tennessee Constitution. The Tennessee Constitution requires all judges to be elected by the qualified voters of the state, yet, under the Plan, all appellate judges are initially selected by gubernatorial appointment and then retained in uncontested referenda. I argued that both the appointment and retention features of the Plan are unconstitutional, and I recommended that the legislature refuse to reauthorize the Plan when it expires in June …

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Initiating A New Constitutional Dialogue: The Increased Importance Under Aedpa Of Seeking Certiorari From Judgments Of State Courts, Giovanna Shay, Christopher Lasch Oct 2008

Initiating A New Constitutional Dialogue: The Increased Importance Under Aedpa Of Seeking Certiorari From Judgments Of State Courts, Giovanna Shay, Christopher Lasch

William & Mary Law Review

The Antiterrorism and Effective Death Penalty Act (AEDPA) contains a provision restricting federal courts from considering any authority other than holdings of the Supreme Court in determining whether to grant a state prisoner's petition for habeas corpus. Through an empirical study of cert filings and cases decided by the Supreme Court, we assess this provision's impact on the development of federal constitutional criminal doctrine. Before AEDPA and other restrictions on federal habeas corpus, lower federal courts and state courts contributed to doctrinal development by engaging in a "dialogue" (as described by Robert M. Cover and T. Alexander Aleinikoff in a …

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Possession Is Nine Tenths Of The Law: But Who Really Owns A Church's Property In The Wake Of A Religious Split Within A Hierarchical Church?, Meghaan Cecilia Mcelroy Oct 2008

Possession Is Nine Tenths Of The Law: But Who Really Owns A Church's Property In The Wake Of A Religious Split Within A Hierarchical Church?, Meghaan Cecilia Mcelroy

William & Mary Law Review

No abstract provided.

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A Darwinist View Of The Living Constitution, Scott Dodson Oct 2008

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 …

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The Iphone Meets The Fourth Amendment, Adam M. Gershowitz Oct 2008

The Iphone Meets The Fourth Amendment, Adam M. Gershowitz

Faculty Publications

Under the search incident to arrest doctrine, police may search the entire body and immediate grabbing space of an arrestee, including the contents of all containers, without any probable cause. Because almost all traffic infractions are arrestable offenses, police have enormous opportunity to conduct such searches incident to arrest. In the near future, these already high-stakes searches will become even more important because millions of drivers will not only possess containers that hold a few scattered papers, such as wallets or briefcases, but also iPhones—capable of holding tens of thousands of pages of personal information. If current Fourth Amendment jurisprudence …

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Choice Of Law, The Constitution And Lochner, James Y. Stern Oct 2008

Choice Of Law, The Constitution And Lochner, James Y. Stern

Faculty Publications

No abstract provided.

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A Darwinist View Of The Living Constitution, Scott Dodson Oct 2008

A Darwinist View Of The Living Constitution, Scott Dodson

Vanderbilt Law Review

There is much debate, and has been for some time, over whether we have a "living" Constitution, one that adapts to changing circumstances and evolves over time. The metaphor arose and gained initial force during the Progressive Era and has been at the forefront of the debate on constitutional interpretation ever since. There is a more recent division, most prominently marked by Professor Owen Jones and Professors Brian Leiter and Michael Weisberg, over whether biology has a meaningful role to play in legal developments. Professor Jones has written many articles promoting the potential utility of behavioral and evolutionary science to …

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Justiciable Generalized Grievances, Kimberly L. Wehle Oct 2008

Justiciable Generalized Grievances, Kimberly L. Wehle

All Faculty Scholarship

The Supreme Court's prevailing test for Article III standing - injury-in-fact, causation, and redressability - generally restricts suits to remedy injuries affecting broad segments of the public in substantially equal measure. In Massachusetts v. EPA, the Supreme Court appeared to depart from this proposition in holding that the Commonwealth of Massachusetts has standing to sue the EPA to prompt it to slow global warming, a harm that affects everyone on Earth. The dissenting Justices assailed the majority for finding justiciable a so-called “generalized grievance” in contravention of prior standing precedent that is based on the notion that if parties seek …

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Under-The-Table Overruling, Christopher J. Peters Oct 2008

Under-The-Table Overruling, Christopher J. Peters

All Faculty Scholarship

In this contribution to a Wayne Law Review symposium on the first three years of the Roberts Court, the author normatively assesses the Court's practice of "under-the-table overruling," or "underruling," in high-profile constitutional cases involving abortion, campaign-finance reform, and affirmative action. The Court "underrules" when it renders a decision that undercuts a recent precedent without admitting that it is doing so. The author contends that underruling either is not supported by, or is directly incompatible with, three common rationales for constitutional stare decisis: the noninstrumental rationale, the predictability rationale, and the legitimacy rationale. In particular, while the latter rationale - …

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Is Military Law Relevant To The "Evolving Standards Of Decency" Embodied In The Eighth Amendment?, Corey Rayburn Yung Sep 2008

Is Military Law Relevant To The "Evolving Standards Of Decency" Embodied In The Eighth Amendment?, Corey Rayburn Yung

NULR Online

No abstract provided.

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September 28: 2008: Repentence, Bruce Ledewitz Sep 2008

September 28: 2008: Repentence, Bruce Ledewitz

Hallowed Secularism

Blog post, “Repentence“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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September 26, 2008: No, You Don't Live An Exemplary Life, Bruce Ledewitz Sep 2008

September 26, 2008: No, You Don't Live An Exemplary Life, Bruce Ledewitz

Hallowed Secularism

Blog post, “ No, You Don't Live an Exemplary Life“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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Summary Of We The People Nev. V. Sec’Y Of State, 124 Nev. Adv. Op. No. 75, Richard Manhattan Sep 2008

Summary Of We The People Nev. V. Sec’Y Of State, 124 Nev. Adv. Op. No. 75, Richard Manhattan

Nevada Supreme Court Summaries

Original petition for writ of mandamus to challenge a statutory filing deadline for ballot initiatives proposing constitutional amendments.

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Continuing The Debate About Presidential Debates, Alexander J. Blenkinsopp Sep 2008

Continuing The Debate About Presidential Debates, Alexander J. Blenkinsopp

NULR Online

No abstract provided.

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September 23, 2008: Excerpt From For The Establishment Of Religion, Bruce Ledewitz Sep 2008

September 23, 2008: Excerpt From For The Establishment Of Religion, Bruce Ledewitz

Hallowed Secularism

Blog post, “Excerpt from For the Establishment of Religion“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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Book Review Of The Nine: Inside The Secret World Of The Supreme Court, Eric J. Segall Sep 2008

Book Review Of The Nine: Inside The Secret World Of The Supreme Court, Eric J. Segall

Journal of Legal Education

No abstract provided.

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September 21, 2008: The Bailout Is Socialism, Bruce Ledewitz Sep 2008

September 21, 2008: The Bailout Is Socialism, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Bailout is Socialism“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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September 19, 2008: Who Lost Ukraine?, Bruce Ledewitz Sep 2008

September 19, 2008: Who Lost Ukraine?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Who Lost Ukraine?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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September 17, 2008: Pulpit Freedom Sunday, Bruce Ledewitz Sep 2008

September 17, 2008: Pulpit Freedom Sunday, Bruce Ledewitz

Hallowed Secularism

Blog post, “Pulpit Freedom Sunday“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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September 15, 2008: Secular Hostility To Religion, Bruce Ledewitz Sep 2008

September 15, 2008: Secular Hostility To Religion, Bruce Ledewitz

Hallowed Secularism

Blog post, “Secular Hostility to Religion“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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