Constitutional Law Commons^™

May 5, 2013: So, What Is Science As We Know It Is At An End?, Bruce Ledewitz

Hallowed Secularism

Blog post, “So, What Is Science As We Know It Is at an End?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

May 2, 2013: Nihilism And Science, Bruce Ledewitz

Hallowed Secularism

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

Advancing An Adaptive Standard Of Strict Scrutiny For Content-Based Commercial Speech Regulation, Nat Stern, Mark Joseph Stern

Scholarly Publications

No abstract provided.

The Dormant Second Amendment: Exploring The Rise, Fall, And Potential Resurrection Of Independent State Militias, Michael J. Golden

William & Mary Bill of Rights Journal

The term “militia” is polarizing, misunderstood, misapplied, and generally difficult for modern Americans to digest. That is not surprising, given the depth and breadth of American militia history and militias’ substantial evolution over four centuries.

Historically, militia simply refers to a broad-based civic duty to protect one’s fellow citizens from internal and external dangers and is not limited to activities involving firearms. Reestablishing militia’s true meaning and purpose—and reinvigorating independent state militias in the United States to effect that purpose—has the potential to address states’ emerging financial and security gaps and to produce multiple other significant benefits, including recalibrating federalism. …

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

University of Richmond Law Review

No abstract provided.

A Winn For Originalism Puts Establishment Clause Reform Within Reach, Patrick T. Gillen

William & Mary Bill of Rights Journal

No abstract provided.

Distinguishing Between Custom And Law: Empirical Examples Of Endogeneity In Property And First Amendment Precedents, Daniel L. Chen, Susan Yeh

William & Mary Bill of Rights Journal

No abstract provided.

The Meaning Of Science In The Copyright Clause, Ned Snow

BYU Law Review

The Constitution premises Congress's copyright power on promoting "the Progress of Science." The word Science therefore seems to define the scope of copyrightable subject matter. Modern courts and commentators have subscribed to an originalist view of Science, teaching that Science meant general knowledge at the time of the Framing. Under this interpretation, all subject matter may be copyrighted because expression about any subject increases society's store of general knowledge. Science, however, did not originally mean general knowledge. In this Article, I examine evidence surrounding the Copyright Clause and conclude that at the Framing of the Constitution, Science meant a system …

The Exceptions Clause As A Structural Safeguard, Tara Leigh Grove

Faculty Publications

Scholars have long treated the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. This Article argues that scholars have overlooked an important function of the Clause. Congress has repeatedly used its broad “exceptions power” to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on insights from social science, this Article asserts that Congress has an incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the …

The Federal Circuit As A Federal Court, Paul R. Gugliuzza

William & Mary Law Review

The U.S. Court of Appeals for the Federal Circuit has exclusive jurisdiction over patent appeals and, as a consequence, the last word on many legal issues important to innovation policy. This Article shows how the Federal Circuit augments its already significant power by impeding other government institutions from influencing the patent system. Specifically, the Federal Circuit has shaped patent-law doctrine, along with rules of jurisdiction, procedure, and administrative law, to preserve and expand the court's power in four interinstitutional relationships: the court's federalism relationship with state courts, its separation of powers relationship with the executive and legislative branches, its vertical …

Fifty Years Before Brady, Colin Starger

All Faculty Scholarship

In marking the fiftieth anniversary of Brady v. Maryland, a fitting way to appreciate the historic significance of Justice Douglas’ opinion for the Court is to turn back the pages another fifty years. Brady’s profound contribution to our criminal justice system becomes apparent by considering the impoverished state of the Supreme Court’s due process doctrine as it stood a century ago. In the fifty years that led up to Brady, the Court confronted a series of racially and politically charged cases that forced constitutional soul searching about due process in the face of rank injustice. The story of the Court’s …

Counsel's Control Over The Presentation Of Mitigating Evidence During Capital Sentencing, James Michael Blakemore

Michigan Law Review

The Sixth Amendment gives a defendant the right to control his defense and the right to a lawyer's assistance. A lawyer's assistance, however, sometimes interferes with a defendant's control over his case. As a result, the Supreme Court, over time, has had to delineate the spheres of authority that pertain to counsel and defendant respectively. The Court has not yet decisively assigned control over mitigating evidence to either counsel or defendant. This Note argues that counsel should control the presentation of mitigating evidence during capital sentencing. First, and most importantly, decisions concerning the presentation of mitigating evidence are best characterized …

The Application Of Anti-Discrimination Laws To Religious Institutions: The Irresistible Force Meets The Immovable Object, Oliver S. Thomas

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Drugs And Alcohol In The Workplace , Venable, Baetjer & Howard, Esqs.

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Privacy, Jed Rubenfeld

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Due Process In A Nutshell, Arthur Markewich

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Due Process In Unemployment Insurance Adjudication: Overview Of The Unemployment Insurance System, Frank J. Barbaro

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Striving For Efficiency In Administrative Litigation: North Carolina's Office Of Administrative Hearings, Julian Mann Iii

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

State Court Invalidation Of A Federal Regulation: Thomas V. North Carolina Department Of Human Resources, Gary L. Cole

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Authority Of An Administrative Agency To Decide Constitutional Issues: Richardson V. Tennessee Board Of Dentistry, Marykay Foy

Journal of the National Association of Administrative Law Judiciary

No abstract provided.