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Fiduciary Principles And The Jury, Ethan J. Leib, Michael Serota, David L. Ponet

William & Mary Law Review

This Essay argues that because jurors exercise state authority with wide discretion over the legal and practical interests of other citizens, and because citizens repose trust and remain vulnerable to jury and juror decisions, juries and jurors share important similarities with traditional fiduciary actors such as doctors, lawyers, and corporate directors and boards. The paradigmatic fiduciary duties—those of loyalty and care—therefore provide useful benchmarks for evaluating and guiding jurors in their decisionmaking role. A sui generis public fiduciary duty of deliberative engagement also has applications in considering the obligations of jurors. This framework confirms much of what we know about …

The Jury As A Political Institution: An Internal Perspective, Robert P. Burns

William & Mary Law Review

In this Essay, I will briefly describe some of the more obvious ways in which the jury has been considered a political institution. I will then discuss the senses in which we can understand the term “political” in the context of the American jury trial. I will describe the senses in which Hannah Arendt, perhaps the most important political philosopher of the twentieth century, tried to distinguish between “the political” and the “the legal” and the limitations of any such distinction. I will then turn to the heart of this Essay, a description of the ways in which the American …

Juries As Regulators Of Last Resort, Stephan Landsman

William & Mary Law Review

No abstract provided.

Second-Order Diversity Revisited, Jeffrey Abramson

William & Mary Law Review

No abstract provided.

Restoring The Civil Jury's Role In The Structure Of Our Government, Sheldon Whitehouse

William & Mary Law Review

No abstract provided.

Shelby County And The Illusion Of Minimalism, Richard L. Hasen

William & Mary Bill of Rights Journal

No abstract provided.

Opening Remarks, Akhil Reed Amar

William & Mary Law Review

No abstract provided.

Binary Searches And The Central Meaning Of The Fourth Amendment, Lawrence Rosenthal

William & Mary Bill of Rights Journal

No abstract provided.

Professional Licenses And Substantive Due Process: Can States Compel Physicians To Provide Their Services, Carolyn R. Cody

William & Mary Bill of Rights Journal

No abstract provided.

The Failure Of Originalism In Preserving Constitutional Rights To Civil Jury Trial, Renée Lettow Lerner

William & Mary Bill of Rights Journal

The Federal Bill of Rights and state constitutions rely heavily on procedural protections, especially jury rights. Supporters of these rights at the founding praised the jury in extravagant terms, and many members of the legal profession continue to do so today. Yet civil and criminal jury trials are vanishing in the United States. The disappearance of the civil jury presents a puzzle because the Seventh Amendment and state constitutional rights require that civil jury trial be “preserved” or “remain inviolate.”

Scholarship on the history of constitutional rights to civil jury trial has tended to focus exclusively on the Seventh Amendment, …

Marriage Equality In State And Nation, Anthony Michael Kreis

William & Mary Bill of Rights Journal

No abstract provided.

Congress's (Limited) Power To Represent Itself In Court, Tara Leigh Grove, Neal Devins

Faculty Publications

Scholars and jurists have long assumed that, when the executive branch declines to defend a federal statute, Congress may intervene in federal court to defend the law. When invalidating the Defense of Marriage Act, for example, no Supreme Court Justice challenged the authority of the House of Representatives to defend federal laws in at least some circumstances. At the same time, in recent litigation over the Fast and Furious gun-running case, the Department of Justice asserted that the House could not go to court to enforce a subpoena against the executive. In this Article, we seek to challenge both claims. …