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Who Will Save The Redheads? Towards An Anti-Bully Theory Of Judicial Review And Protection Of Democracy, Yaniv Roznai

William & Mary Bill of Rights Journal

Democracy is in crisis throughout the world. And courts play a key role within this process as a main target of populist leaders and in light of their ability to hinder administrative, legal, and constitutional changes. Focusing on the ability of courts to block constitutional changes, this Article analyzes the main tensions situated at the heart of democratic erosion processes around the world: the conflict between substantive and formal notions of democracy; a conflict between believers and nonbelievers that courts can save democracy; and the tension between strategic and legal considerations courts consider when they face pressure from political branches. …

Fire And Spotted Owls In Sierra Nevada National Forests: The Use Of Science In Management Plan Revision, Gordon Steinhoff

William & Mary Environmental Law and Policy Review

No abstract provided.

Judicial Credibility, Bert I. Huang

William & Mary Law Review

Do people believe a federal court when it rules against the government? And does such judicial credibility depend on the perceived political affiliation of the judge? This study presents a survey experiment addressing these questions, based on a set of recent cases in which both a judge appointed by President George W. Bush and a judge appointed by President Bill Clinton declared the same Trump Administration action to be unlawful. The findings offer evidence that, in a politically salient case, the partisan identification of the judge—here, as a “Bush judge” or “Clinton judge”—can influence the credibility of judicial review in …

Enforcing Principled Constitutional Limits On Federal Power: A Neo-Federalist Refinement Of Justice Cardozo's Jurisprudence, Robert J. Pushaw Jr.

William & Mary Law Review

Since the New Deal of the mid-1930s, Congress has asserted virtually absolute power to (1) “regulate Commerce ... among the States,” (2) tax and spend for the “general Welfare,” and (3) delegate “legislative Power[ ]” to the executive branch. From 1937 until 1994, the Supreme Court rejected every claim that such statutes had exceeded Congress’s Article I authority and usurped the states’ reserved powers under the Tenth Amendment. Over the past quarter century, conservative Justices have tried, and failed, to develop principled constitutional limits on the federal government while keeping the modern administrative and social welfare state largely intact.

The …

The Method In Fiduciary Law's Mixed Messages, Evan J. Criddle

Popular Media

No abstract provided.

Liberty In Loyalty: A Republican Theory Of Fiduciary Law, Evan J. Criddle

Faculty Publications

Conventional wisdom holds that the fiduciary duty of loyalty is a prophylactic rule that serves to deter and redress harmful opportunism. This idea can be traced back to the dawn of modern fiduciary law in England and the United States, and it has inspired generations of legal scholars to attempt to explain and justify the duty of loyalty from an economic perspective. Nonetheless, this Article argues that the conventional account of fiduciary loyalty should be abandoned because it does not adequately explain or justify fiduciary law’s core features.

The normative foundations of fiduciary loyalty come into sharper focus when viewed …

Tiers Of Scrutiny In A Hierarchical Judiciary, Tara Leigh Grove

Faculty Publications

No abstract provided.

Premodern Constitutionalism, Martin H. Redish, Matthew Heins

William & Mary Law Review

The traditional concept of American constitutionalism has long been a basic assumption not subject to tremendous examination. For generations, scholars have understood our Constitution to be the byproduct of a revolutionary war fought for representation and a foundinggeneration concernedwith preventingtyranny in any form. The traditional understandingof American constitutionalism thus consists of two elements: the underlyingprinciple of skeptical optimism, which can be found in the historical context within which the Framers gathered to draft the Constitution, and the political apparatus effectuating that idea— countermajoritarian constraint set against majoritarian power— which reveals itself through reverse engineeringfrom the structural Constitution.

Over the last …

Eaja Fees For Reasons-And-Bases Remands: The Perspective Of A Veterans' Lawyer, David E. Boelzner

Faculty Publications

No abstract provided.

The Changing Guard Of Patent Law: Chevron Deference For The Pto, Melissa F. Wasserman

William & Mary Law Review

Whereas Congress has increasingly turned to administrative agencies to regulate complex technical areas, the patent system has remarkably remained an outlier. In the patent arena, the judiciary— not a federal agency—is perceived to be the most important expositor of substantive patent law standards. Yet, as the criticism toward the patent system has grown, so too have the challenges to this unusual power dynamic. The calls for institutional reform culminated in late 2011 with the enactment of the historic Leahy-Smith America Invents Act (AIA). Although scholars have recognized that the AIA bestows a glut of new powers upon the United States …

A Critical Guide To Erie Railroad Co. V. Tompkins, Caleb Nelson

William & Mary Law Review

No abstract provided.

When Is Finality Final? Second Chances At The Supreme Court, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

The Florida Beach Case And The Road To Judicial Takings, Michael C. Blumm, Elizabeth B. Dawson

William & Mary Environmental Law and Policy Review

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, the U.S. Supreme Court unanimously upheld a state beach restoration project against landowner claims of an unconstitutional taking of the property. This result was not nearly as surprising as the fact that the Court granted certiorari on a case that turned on an obscure aspect of Florida property law: whether landowners adjacent to a beach had the rights to future accretions of sand and to maintain contact with the water.

The Court’s curious interest in the case was piqued by the landowners’ recasting the case from the regulatory taking …

When Is Finality . . . Final? Rehearing And Resurrection In The Supreme Court, Aaron-Andrew P. Bruhl

Faculty Publications

No abstract provided.

Lawmakers As Lawbreakers, Ittai Bar-Siman-Tov

William & Mary Law Review

How would Congress act in a world without judicial review? Can
lawmakers be trusted to police themselves? This Article examines
Congress’s capacity and incentives to enforce upon itself “the law of
congressional lawmaking”—a largely overlooked body of law that is
completely insulated from judicial enforcement. The Article explores
the political safeguards that may motivate lawmakers to engage in
self-policing and rule-following behavior. It identifies the major
political safeguards that can be garnered from the relevant legal,
political science, political economy, and social psychology scholarship,
and evaluates each safeguard by drawing on a combination of
theoretical, empirical, and descriptive studies about …

In Defense Of Ideology: A Principled Apporach To The Supreme Court Confirmation Process, Lori A. Ringhand

William & Mary Bill of Rights Journal

In this paper, Professor Ringhand offers a principled defense of an ideological approach to the Supreme Court Justice confirmation process. In constructing her argument, she does three things. First, she explores how the insights provided by recent empirical legal scholarship have created a need to rethink the role of the Supreme Court and, consequently, the process by which we select Supreme Court Justices. In doing so, Professor Ringhand explains how these insights have called into question much of our conventional constitutional narrative, and how this failure of the conventional narrative has in turn undermined traditional objections to an ideologically-based confirmation …

Clarifying Departmentalism: How The Framers' Vision Of Judicial And Presidential Review Makes The Case For Deductive Judicial Supremacy, David W. Tyler

William & Mary Law Review

No abstract provided.

Judicial Confusion And Inconsistency In Handling Juror Misconduct: A New Proposal, Kristen D. Clardy

William & Mary Bill of Rights Journal

No abstract provided.

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 …

Whither Sexual Orientation Analysis?: The Proper Methodology When Due Process And Equal Protection Intersect, Sharon E. Rush

William & Mary Bill of Rights Journal

This Article suggests that there is Proper Methodology that courts apply when reviewing cases at the intersection of due process and equal protection. Briefly, courts operate under a rule that heightened review applies if either a fundamental right or a suspect class is involved in a case, and that rational basis review applies if neither is involved (the "Rule"). Two primary exceptions to the Rule exist, and this Article identifies them as the "Logical" and "Ill Motives" Exceptions. The Logical Exception applies when a court need not apply heightened review because a law fails rational basis review. The Ill Motives …

Fee Shifting As A Congressional Response To Adventurous Presidential Signing Statements, Harold J. Krent

William & Mary Bill of Rights Journal

No abstract provided.

The Unconstitutionality Of "Signing And Not-Enforcing", Michael B. Rappaport

William & Mary Bill of Rights Journal

No abstract provided.

Signing Statements As Declaratory Judgments: The President As Judge, Phillip J. Cooper

William & Mary Bill of Rights Journal

No abstract provided.

Dumbo's Feather: An Examination And Critque Of The Supreme Court's Use, Misuse, And Abuse Of Tradition In Protecting Fundamental Rights, Ronald J. Krotoszynski Jr.

William & Mary Law Review

The Justices of the Supreme Court have a great deal in common with the gifted pachyderm from the Walt Disney animated classic feature Dumbo. Like Dumbo's "magic" feather that purportedly enabled him to exercise his natural ability to fly, the tradition limitation on the Court's jurisprudence on unenumerated fundamental constitutional rights provides a more-apparent-than real constraint on the Court's almost unlimited ability to nullify legislative and executive action. In all too many substantive due process cases, reason seems to follow a predetermined result, rather than the result in the case following from the applicable governing principles. In this Article, Professor …

Tom Delay: Popular Constitutionalist?, Neal Devins

Faculty Publications

No abstract provided.

Aedpa Deference And The Undeveloped State Factual Record: Monroe V. Angelone And New Evidence, Rachel E. Wheeler

William & Mary Law Review

No abstract provided.

Judicial Review And Nongeneralizable Cases, Neal Devins, Alan J. Meese

Faculty Publications

No abstract provided.

Barking Up The Wrong Tree: The Misplaced Furor Over The Feeney Amendment As A Threat To Judicial Independence, David P. Mason

William & Mary Law Review

No abstract provided.

The Judicial Safeguards Of Federalism, Neal Devins

Faculty Publications

No abstract provided.

Proclamations, National Monuments, And The Scope Of Judicial Review Under The Antiquities Act Of 1906, Roberto Iraola

William & Mary Environmental Law and Policy Review

No abstract provided.