Constitutional Law Commons^™

Of Burning Houses And Roasting Pigs: Why Butler V. Michigan Remains A Key Free Speech Victory More Than A Half-Century Later, Clay Calvert

Federal Communications Law Journal

More than fifty years after the U.S. Supreme Court rendered its unanimous decision in Butler v. Michigan, the case remains a pivotal-if unheralded and perhaps underappreciated-victory for freedom of speech. This Article analyzes the Butler principle and demonstrates how courts repeatedly apply it across different media platforms and in a myriad of factually distinct contexts, ranging from prohibitions on the sale of sex toys to bans on beer bottles with offensive labels. The Article initially provides an in-depth look at Butler, drawing on literary scholarship, historical newspaper articles from the time of the case, and other sources. It then illustrates …

Making Rights, Nancy Leong

Sturm College of Law: Faculty Scholarship

By adjudicating cases, courts make constitutional rights. This Article considers the conditions under which this constitutional rights-making should take place. Ideally, constitutional rights-making should occur simultaneously in multiple remedial, factual, and procedural contexts; in reality, however, rights are undesirably confined to a single context. This situation has negative consequences for the endeavor of constitutional rights-making.

As a case study in rights-making, the Article offers a comprehensive quantitative and qualitative analysis of the Fourth Amendment. It presents an original data set cataloging every instance of Fourth Amendment rights-making in the federal appellate courts from 2005 and 2009. That data set shows …

Independence For Washington State's Privileges And Immunities Clause, P. Andrew Rorholm Zellers

Washington Law Review

Article I, section 12 of the Washington State Constitution prohibits special privileges and immunities. It provides: “No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.” Since the 1940s, the Washington State Supreme Court has analogized article I, section 12 to the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. As a result, it has treated claims under article I, section 12 and the Equal Protection Clause as a single inquiry and applied …

Separation Of Religion And State In Japan: A Pragmatic Interpretation Of Articles 20 And 89 Of The Japanese Constitution, Andrew B. Van Winkle

Washington International Law Journal

Article 20 of Japan’s Constitution establishes freedom of religion. To protect this freedom, the provisions of Articles 20 and 89 separate religion from the state to prevent the return of State Shintō. Despite this separation, the Japanese Supreme Court has consistently upheld instances where state entities interact with religious groups. These decisions have raised the ire of numerous academics and legal professionals in and out of Japan who believe that Japan’s constitutional separation requires absolute separation, or at least something more stringent than the Supreme Court has been willing to find. Although this comment rejects the approach taken by the …

A Battle Between Law And Society In Micronesia: An Example Of Originalism Gone Awry, Brian Z. Tamanaha

Washington International Law Journal

Two conceptions of the relationship between law and society appear to compete: the idea that law mirrors society and the notion that a gap exists between law and society. Both ideas have some truth—law is an imperfect mirror of society. For various reasons, law and society can fall out of sync or even come into conflict. The 1975 Constitutional Convention, which led to the formation of the Federated States of Micronesia (“FSM”), marked the beginning of a battle between that society and its legal institutions. The Constitution’s framers strove to preserve traditional Micronesian culture by ensuring it a respected place …

An Unusual Separation Of Power Episode: Samantar V. Yousuf And The Need For The Executive Branch To Assert Control Over Foreign Official Sovereign Immunity Determinations, Laura Manns

William & Mary Bill of Rights Journal

No abstract provided.

Wiretapping The Internet: The Expansion Of The Communications Assistance To Law Enforcement Act To Extend Government Surveillance, Christa M. Hibbard

Federal Communications Law Journal

Criminal use of the Internet to circumvent traditional government phone wiretaps has inspired the Obama Administration to create a proposal to expand the Communications Assistance to Law Enforcement Act ("CALEA"). CALEA was passed in 1994 to regulate telephone and broadband companies to ensure compliance with standards to enable government wiretapping. The proposed amendment of CALEA would allow the government to require all communications service providers to meet technical standards necessary to comply with a wiretap order. The expansion of CALEA would likely widen its scope to social networking sites, instant messaging, gaming consoles that allow conversation among multiple players, and …

Kiss The Book...You're President...: "So Help Me God" And Kissing The Book In The Presidential Oath Of Office, Frederick B. Jonassen

William & Mary Bill of Rights Journal

No abstract provided.

Looking Back At Cohen V. California: A 40 Year Retrospective From Inside The Court, Thomas G. Krattenmaker

William & Mary Bill of Rights Journal

No abstract provided.

Hugo Black's Vision Of The Lawyer, The First Amendment, And The Duty Of The Judiciary: The Bar Applicant Cases In A National Security State, Joshua E. Kastenberg

William & Mary Bill of Rights Journal

No abstract provided.

"Give Me A Few More Minutes!": How Virginia Violates Due Process By Hitting The Snooze Button On A Timely Declaration Of Death, Samantha Lauren Soller

William & Mary Bill of Rights Journal

No abstract provided.

Teens, Sexts, & Cyberspace: The Constitutional Implications Of Current Sexting & Cyberbullying Laws, Jamie L. Williams

William & Mary Bill of Rights Journal

No abstract provided.

Interpretive Contestation And Legal Correctness, Matthew D. Adler

William & Mary Law Review

No abstract provided.

Discovering Concealment: Defining The Limits Of Equitable Tolling In Section 16(B) Of The Securities Exchange Act, Boris Rappoport

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Sense And Severability, Tobias A. Dorsey

University of Richmond Law Review

No abstract provided.

Why Virginia's Challenges To The Patient Protection And Affordable Care Act Did Not Invoke Nullification, Robert S. Claiborne Jr.

University of Richmond Law Review

No abstract provided.

The Anti-Injunction Act, Congressional Inactivity, And Pre-Enforcement Challenges To § 5000a Of The Tax Code, Kevin C. Walsh

University of Richmond Law Review

No abstract provided.

Finding The Original Meaning Of American Criminal Procedure Rights: Lessons From Reasonable Doubt’S Development, Randolph N. Jonakait

The University of New Hampshire Law Review

[Excerpt] “The prosecution must prove every element of the crime beyond a reasonable doubt for a valid conviction. The Constitution nowhere explicitly contains this requirement, but the Supreme Court in In re Winship1 stated that due process commands it. Justice Brennan, writing for the Court, noted that the Court had often assumed that the standard existed, that it played a central role in American criminal justice by lessening the chances of mistaken convictions, and that it was essential for instilling community respect in criminal enforcement. The reasonable doubt standard is fundamental because it makes guilty verdicts more difficult. As Winship …

Litigating Federal Health Care Legislation And The Interstices Of Procedure, Wendy Collins Perdue

University of Richmond Law Review

No abstract provided.

Facial And As-Applied Challenges To The Individual Mandate Of The Patient Protection And Affordable Care Act, Edward A. Hartnett

University of Richmond Law Review

No abstract provided.

Constitutional Forbearance, A. Christopher Bryant

University of Richmond Law Review

No abstract provided.

Beyond The Doctrine: Five Questions That Will Determine The Aca's Constitutional Fate, Bradley W. Joondeph

University of Richmond Law Review

No abstract provided.

The Rhetoric Hits The Road: State Challenges To The Affordable Care Act Implementation, Elizabeth Weeks Leonard

University of Richmond Law Review

No abstract provided.

States' Rights And State Standing, Stephen I. Vladeck

University of Richmond Law Review

No abstract provided.

The "Flesh And Blood" Defense, James Erickson Evans

William & Mary Law Review

No abstract provided.

The Problem Of Policing, Rachel A. Harmon

Michigan Law Review

The legal problem of policing is how to regulate police authority to permit officers to enforce law while also protecting individual liberty and minimizing the social costs the police impose. Courts and commentators have largely treated the problem of policing as limited to preventing violations of constitutional rights and its solution as the judicial definition and enforcement of those rights. But constitutional law and courts alone are necessarily inadequate to regulate the police. Constitutional law does not protect important interests below the constitutional threshold or effectively address the distributional impacts of law enforcement activities. Nor can the judiciary adequately assess …

Discarding The North Dakota Dictum: An Argument For Strict Scrutiny Of The Three-Tier Distribution System, Amy Murphy

Michigan Law Review

In Granholm v. Heald, the Supreme Court held that states must treat instate and out-of-state alcoholic beverages equally under the dormant Commerce Clause and established a heightened standard of review for state alcohol laws. Yet in dictum the Court acknowledged that the three-tier distribution system-a regime that imposes a physical presence requirement on alcoholic beverage wholesalers and retailers-was "unquestionably legitimate." Though the system's physical presence requirement should trigger strict scrutiny, lower courts have placed special emphasis on Granholm's dictum, refusing to subject the three-tier distribution system to Granholm's heightened standard of review. This Note argues that the dictum should be …

The Article Ii Safeguards Of Federal Jurisdiction, Tara Leigh Grove

Faculty Publications

Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary. Scholars have thus overlooked the important (and surprising) role that the executive branch has played in these jurisdictional struggles. This Article seeks to fill that void. Drawing on two strands of social science research, the Article argues that the executive branch has a strong incentive to use its constitutional authority over the enactment and enforcement of federal law to oppose jurisdiction-stripping measures. Notably, this structural argument has considerable historical support. The executive branch has repeatedly opposed jurisdiction-stripping proposals in Congress. That has been true even …

Exactions For The Future, Timothy M. Mulvaney

Faculty Scholarship

New development commonly contributes to projected infrastructural demands caused by multiple parties or amplifies the impacts of anticipated natural hazards. At times, these impacts only can be addressed through coordinated actions over a lengthy period. In theory, the ability of local governments to attach conditions, or “exactions,” to discretionary land use permits can serve as one tool to accomplish this end. Unlike traditional exactions that regularly respond to demonstrably measurable, immediate development harms, these “exactions for the future” — exactions responsive to cumulative anticipated future harms — admittedly can present land assembly concerns and involve inherently uncertain long-range government forecasting. …

Hassan V. National Insurance Institute, Dorit Beinisch, Miriam Naor, Uzi Vogelman, Edna Arbel, Esther Hayut, Elyakim Rubinstein, Salim Joubran

Translated Opinions

This Petition challenges the constitutionality of section 9A(b) of the Income Guarantee Act. The main claim the Petitions raise is that section 9A(b) establishes an absolute presumption whereby those who own or have access to the use of a vehicle shall be seen as having an income at the amount of the benefit, and thus their right to the benefit of income guarantee is revoked. It was argued that this presumption unconstitutionally infringes the right to minimal dignified human existence.

The Supreme Court sitting as a High Court of Justice granted the Petitions and declared the unconstitutionality of section 9A(b) …