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Jury Bias Resulting In Indefinite Commitment: Expanding Procedural Protections In Svp Civil Commitment Proceedings Under The Mathews Test, Alli M. Mentch

William & Mary Law Review

Twenty states, the District of Columbia, and the federal government have enacted Sexually Violent Predator (SVP) laws that permit the civil commitment of sex offenders. Under these laws, imprisoned sex offenders serving criminal sentences are transferred to treatment facilities and held indefinitely. As one individual describes civil commitment, “It’s worse than prison. In prison I wasn’t happy, but I was content because I knew I had a release date.” An estimated 5,400 individuals are currently civilly committed under these laws.

This Note argues that such laws do not adequately protect respondents’ due process rights. To that end, this Note proposes …

Fine(Ing) Wine: Challenging Direct-Shipment Licensing Fees On Dormant Commerce Clause Grounds, Alexander R. Steiger

William & Mary Law Review

This Note advocates for a constitutional challenge to state direct-to-consumer licensing fees, arguing that the licensing fees impose an undue burden on interstate commerce. To this end, this Note will apply the Supreme Court’s dormant Commerce Clause jurisprudence to state DtC wine licensing fees. Under this framework, the Court has almost always invalidated state laws that discriminate against out-of-state interests absent a showing that the law is necessary to achieve a legitimate purpose other than economic protectionism. If the state law is not found to discriminate against out-of-state interests, the Court balances the law’s burdens on interstate commerce against its …

Constitutional Structure, Institutional Relationships And Text: Revisiting Charles Black’S White Lectures, Richard C. Boldt

Loyola of Los Angeles Law Review

Fundamental questions about constitutional interpretation and meaning invite a close examination of the complicated origins and the subsequent elaboration of the very structure of federalism. The available records of the Proceedings in the Federal Convention make clear that the Framers entertained two approaches to delineating the powers of the central government relative to those retained by the states. The competing approaches, one reliant on a formalist enumeration of permissible powers, the other operating functionally on the basis of a broad dynamic concept of state incompetence and national interest, often are presented as mutually inconsistent narratives. In fact, these two approaches …

Fitbit Data And The Fourth Amendment: Why The Collection Of Data From A Fitbit Constitutes A Search And Should Require A Warrant In Light Of Carpenter V. United States, Alxis Rodis

William & Mary Bill of Rights Journal

No abstract provided.

Deepfakes: A New Content Category For A Digital Age, Anna Pesetski

William & Mary Bill of Rights Journal

Technology has advanced rapidly in recent years, greatly benefitting society. One such benefit is people’s ability to have quick and easy access to information through news and social media. A recent concern, however, is that manipulated media, otherwise known as “deepfakes,” are being released and passed off as truth. These videos are crafted with technology that allows the creator to carefully change details of the video’s subject to make him appear to do or say things that he never did. Deepfakes are often depictions of political candidates or leaders and have the potential to influence voter choice, thereby altering the …

The Pure-Hearted Abrams Case, Andres Yoder

William & Mary Bill of Rights Journal

One hundred years ago, Justice Oliver Wendell Holmes changed his mind about the right to free speech and wound up splitting the history of free speech law into two. In his dissent in Abrams v. United States, he called for the end of the old order—in which courts often ignored or rejected free speech claims—and set the stage for the current order—in which the right to free speech is of central constitutional importance. However, a century on, scholars have been unable to identify a specific reason for Holmes’s Abrams transformation, and have instead pointed to more diffuse influences. By …

Unduly Burdening Abortion Jurisprudence, Mark Strasser

William & Mary Bill of Rights Journal

The undue burden standard is the current test to determine whether abortion regulations pass constitutional muster. But the function, meaning, and application of that test have varied over time, which undercuts the test’s usefulness and the ability of legislatures to know which regulations pass constitutional muster. Even more confusing, the Court has refused to apply the test in light of its express terms, which cannot fail to yield surprising conclusions and undercut confidence in the Court. The Court must not only clarify what the test means and how it is to be used, but must also formulate that test so …

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. …

Why Liberalism Persists: The Neglected Life Of The Law In The Story Of Liberalism's Decline, Kenneth L. Townsend

St. John's Law Review

(Excerpt)

Liberalism is in decline in the West. Past political divides that pitted classically liberal conservatives against moderate to progressive political liberals are giving way to a new landscape in which a liberal consensus simply cannot be assumed. From the left, socialist and identity-based critiques of liberalism have called into question core liberal assumptions regarding procedural justice, the division between public and private realms, and the rights of individuals. From the right, an increasingly vocal group of conservatives is questioning classical liberalism’s commitment to limited government, a free market, and individual rights in favor of a vision of political community …

Robert Jackson's Critique Of Trump V. Hawaii, William R. Casto

St. John's Law Review

(Excerpt)

Over seventy years ago, United States Supreme Court Justice Robert H. Jackson accurately predicted the Supreme Court’s decision in Trump v. Hawaii. As he foresaw, the Court rubberstamped a President’s purposeful discrimination against a minority religion. This brief Essay explains Trump using Jackson’s critique of judicial review in national-security cases. The Essay also uses Trump to examine a flaw—probably structural—in the constitutional theory of process jurisprudence. The Trump case involved the Court’s construction of congressional legislation apparently limiting the President’s authority, but the present Essay does not address that aspect of the opinion.

International Decision Commentary: Houngue Éric Noudehouenou V. Republic Of Benin, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The judgment in Houngue Éric Noudehouenou v. Republic of Benin adds to the growing body of human rights jurisprudence on national electoral processes in Africa’s international courts. The decision demonstrates the growing importance of Africa’s regional and sub-regional courts as an alternative venue for opposition politicians, activists, and citizens to mobilize and challenge election processes and constitutional amendment processes where the playing field in their state is uneven. In turn, it reinforces the pivotal role of the regional and sub-regional courts in consolidating democratic governance in Africa, and reveals the limits of assessing the performance of Africa’s international courts solely …

Constitutional Limits On Administrative Agencies In Cyberspace, Jon M. Garon

Belmont Law Review

No abstract provided.

Divided Court Issues Bright-Line Ruling On Fourth Amendment Seizures, Jeffrey Bellin

Popular Media

No abstract provided.

No Amendment? No Problem: Judges, “Informal Amendment,” And The Evolution Of Constitutional Meaning In The Federal Democracies Of Australia, Canada, India, And The United States, John V. Orth, John Gava, Arvind P. Bhanu, Paul T. Babie

Pepperdine Law Review

This article considers the way in which judges play a significant role in developing the meaning of a constitution through the exercise of interpretive choices that have the effect of “informally amending” the text. We demonstrate this by examining four written federal democratic constitutions: those of the United States, the first written federal democratic constitution; India, the federal constitution of the largest democracy on earth; and the constitutions of Canada and Australia, both federal and democratic, but emerging from the English unwritten tradition. We divide our consideration of these constitutions into two ideal types, identified by Bruce Ackerman: the “revolutionary” …

Symposium: Examining Black Citizenship From Reconstruction To Black Lives Matter: Rhetoric And Nostalgia In The Criminal Justice Reform Movement, Michael Gentithes

ConLawNOW

Today’s movement for criminal justice reform and its attendant "defund the police" slogan contain nuanced calls to redirect public funds in ways that will both control crime and support downtrodden neighborhoods. But the language in those calls can easily be misinterpreted. Such poor messaging misleads both the movement’s members and the public in two important ways. First, it repeats many of the mistakes made by protest anthems of the past. For too many Americans enduring today’s all-too-real dystopia, calls to defund sound like calls to anarchy, not arguments for peaceable, sensible reforms. Second, defunding rhetoric contains an element of historical …

Free To Hate: Hate Crimes' Intertwinement With The Evolution Of Free Speech In The United States, Lee F. Paulson

Honors Theses

In response to the growing tension between civil liberties and civil rights, this research investigates the relationship between the relative expansiveness of free speech and a the nationwide propensity for hate crimes. I argue that government’s legal limitations of speech influence the development of linguistic and hierarchical norms in a national culture. Given structural inequality’s association to violence and crimes of intimidation, I hypothesize that as the government expands the legal bounds of free speech, the national propensity for hate crimes decreases. Text analyses of 50 influential freedom of expression rulings in the United States (U.S.) Supreme Court from 1919-2019 …

When Is Police Interrogation Really Police Interrogation? A Look At The Application Of The Miranda Mandate, Paul Marcus

Catholic University Law Review

Decades after the Supreme Court’s decision in Miranda v. Arizona, questions abound as to what constitutes interrogation when a suspect is in custody. What appeared a concise, uniform rule has, in practice, left the Fifth Amendment waters muddied. This article addresses a potential disconnect between law enforcement and the courts by analyzing examples of issues arising from Miranda’s application in an array of case law. Ultimately, it attempts to clarify an ambiguity by offering a standard for what conduct classifies as an interrogation.

Are We Still Not Saved? Race, Democracy, And Educational Inequality, Lia Epperson

Articles in Law Reviews & Other Academic Journals

Thirty-four years ago, in his seminal book, "And We Are Not Saved: The Elusive Quest for Racial Justice," Derrick Bell provided a critical view of American history and constitutional jurisprudence to illustrate the challenges the United States faces in reaching true equality. In his enlightened observations about the structure of our republic, Bell refers to “the American contradiction.” To see true progress toward meaningful equality, he contends, we must reckon with the challenging truth of our history—that we are a nation founded on this “constitutional contradiction”... In his work, Professor Bell argued that this American contradiction, “shrouded by myth,” serves …

Pure Privacy, Jeffrey Bellin

Faculty Publications

n 1890, Samuel Warren and Louis Brandeis began a storied legal tradition of trying to conceptualize privacy. Since that time, privacy's appeal has grown beyond those authors' wildest expectations, but its essence remains elusive. One of the rare points of agreement in boisterous academic privacy debates is that there is no consensus on what privacy means.

The modern trend is to embrace the ambiguity. Unable to settle on boundaries, scholars welcome a broad array of interests into an expanding theoretical framework. As a result, privacy is invoked in debates about COVID-19 contact tracing, police body cameras, marriage equality, facial recognition, …

, The American Constitution In The Cycle Of Kali Yuga: Eastern Philosophy Greets Western Democracy, Shiv Narayan Persaud

Journal Publications

This paper will explore the above-mentioned questions while taking into consideration the intent and overarching tenets of the Constitution in relation to the precepts of Kali Yuga. The hope is to generate discourse on some of the trappings of the Constitution and constitutional democracy in an ever changing and increasingly diverse and segmented society-a nation with a multiplicity of cultures with distinctive beliefs and moral systems. Emphatically stated, the intent is not to examine every article or amendment of the Constitution; this would be presumptuous. The intent is to foster an examination of the Constitution as the overall architectural framework …

Rulifying Reasonable Expectations: Why Judicial Tests, Not Originalism, Create A More Determinate Fourth Amendment, Michael Gentithes

Con Law Center Articles and Publications

For decades, commentators have decried the Supreme Court’s Fourth Amendment search jurisprudence as a hopelessly confusing jumble. Critics save their harshest barbs for the judicially created “reasonable expectations of privacy” test, suggesting that it provides little guidance and leaves search cases open to wide judicial discretion. Motivated by such critiques, several Justices have recently claimed that an originalist approach could replace the reasonable expectations test, limit judicial discretion, and clarify the Fourth Amendment’s meaning.

This Article provides a comprehensive defense of the reasonable expectations test against originalist calls to abandon it. It notes two flaws in the originalist response. First, …

The Jurisprudence Of The First Woman Judge, Florence Allen: Challenging The Myth Of Women Judging Differently, Tracy Thomas

Con Law Center Articles and Publications

A key question for legal scholars and political scientists is whether women jurists judge differently than men. Some studies have suggested that women judges are more likely to support plaintiffs in sexual harassment, employment, and immigration cases. Other studies conclude that women are more likely to vote liberally in death penalty and obscenity cases, and more likely to convince their male colleagues to join a liberal opinion. Yet other studies have found little evidence that women judge differently from men.

This article explores the jurisprudence of the first woman judge, Judge Florence Allen, to test these claims of gender difference …

Reclaiming The Long History Of The "Irrelevant" Nineteenth Amendment For Gender Equality, Tracy Thomas

Con Law Center Articles and Publications

The Nineteenth Amendment has been called an “irrelevant” amendment. The women’s suffrage amendment has been deemed insignificant as a constitutional authority, reduced to a historical footnote. In the Supreme Court canon, it has been diminished as a text that “merely gives the vote to women.” With the accomplishment of that simple task, the amendment has been assumed to offer little guidance to modern constitutional analysis or gender equality. The Nineteenth Amendment has become a “constitutional orphan,” disconnected from its historical origins and precedential place in constitutional jurisprudence.

This constricting view of the Nineteenth Amendment ignores the structural implications and significant …

Cases And Materials On West Virginia Constitutional Law, Robert M. Bastress Jr.

Open Access Law Books

No abstract provided.

Confrontation In The Age Of Plea Bargaining [Comments], William Ortman

Law Faculty Research Publications

No abstract provided.

A Perfect Storm: Race, Ethnicity, Hate Speech, Libel And First Amendment Jurisprudence, Michael J. Cole

South Carolina Law Review

No abstract provided.

Why Do The Poor Not Have A Constitutional Right To File Civil Claims In Court Under Their First Amendment Right To Petition The Government For A Redress Of Grievances?, Henry Rose

Faculty Publications & Other Works

Since 1963, the United States Supreme Court has recognized the constitutional right of entities and persons to pursue civil legal claims in American courts under the First Amendment right to petition government for redress of grievances. However, in a series of three cases decided by the Supreme Court in the early 1970’s - Boddie v. Connecticut, United States v. Kras and Ortwein v. Schwab - the Court inexplicably declined to address the appellants’ claims that they have a constitutional right to access the courts to seek resolution of their civil legal claims. In each of these three cases, the indigent …

Enforcement Of The Reconstruction Amendments, Alexander Tsesis

Faculty Publications & Other Works

This Article systematically analyzes the delicate balance of congressional and judicial authority granted by the Reconstruction Amendments. The Thirteenth, Fourteenth, and Fifteenth Amendments vest Congress with powers to enforce civil rights, equal treatment, and civic participation. Their reach extends significantly beyond the Rehnquist and Roberts Courts’ narrow construction of congressional authority. In recent years, the Court has struck down laws that helped secure voter rights, protect religious liberties, and punish age or disability discrimination. Those holdings encroach on the amendments’ allocated powers of enforcement.

Textual, structural, historical, and normative analyses provide profound insights into the appropriate roles of the Supreme …

Enforcement Of The Reconstruction Amendments, Alexander Tsesis

Faculty Publications & Other Works

This Article systematically analyzes the delicate balance of congressional and judicial authority granted by the Reconstruction Amendments. The Thirteenth, Fourteenth, and Fifteenth Amendments vest Congress with powers to enforce civil rights, equal treatment, and civic participation. Their reach extends significantly beyond the Rehnquist and Roberts Courts’ narrow construction of congressional authority. In recent years, the Court has struck down laws that helped secure voter rights, protect religious liberties, and punish age or disability discrimination. Those holdings encroach on the amendments’ allocated powers of enforcement.

Textual, structural, historical, and normative analyses provide profound insights into the appropriate roles of the Supreme …

The Lost History Of Delegation At The Founding, Christine Chabot

Faculty Publications & Other Works

The new Supreme Court is poised to bring the administrative state to a grinding halt. Five Justices have endorsed Justice Gorsuch's dissent in Gundy v. United States--an opinion that threatens to invalidate countless regulatory statutes in which Congress has delegated significant policymaking authority to the Executive Branch. Justice Gorsuch claimed that the “text and history” of the Constitution required the Court to replace a longstanding constitutional doctrine that permits broad delegations with a more restrictive one. But the supposedly originalist arguments advanced by Justice Gorsuch and like-minded scholars run counter to the understandings of delegation that prevailed in the Founding …