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Judging "Under Fire" And The Retreat To Facts, Allison Orr Larsen

William & Mary Law Review

Americans tend to worry about how our current polarized political climate will affect the legitimacy of our courts. Often overlooked in this important conversation is a discussion about what a toxic political dialogue can do—and in fact is doing—to the construction of the law itself. This Article will begin to make the case that judicial decisions themselves change as a result of high-intensity politics. Specifically, I will argue that when judges are “under fire” (to borrow a phrase from Planned Parenthood v. Casey), they tend to cloak their decisions in factual observations about the world that seem neutral and objective, …

A Brief History Of Judicial Appointments From The Last 50 Years Through The Trump Administration, Donald F. Mcgahn Ii

William & Mary Law Review Online

This is the transcript of a lecture Mr. McGahn delivered at William & Mary Law School on November 19, 2018.

State Regulations Are Failing Our Children: An Analysis Of Child Marriage Laws In The United States, Rachel L. Schuman

William & Mary Law Review

No abstract provided.

Government Ownership Of Banks: A Curse Or A Blessing For The United States?, Yueh-Ping (Alex) Yang

William & Mary Business Law Review

During the Financial Crisis of 2007–2008, the Treasury injected an enormous amount of capital and held equity in 707 financial institutions to stabilize the U.S. financial system. The government’s large-scale ownership of banks alarmed the U.S. banking sector. The mainstream opinion in the United States strongly opposed this practice, mostly due to the distrust of the government and the fear that government intervention would jeopardize private shareholders’ interests. Later developments, including the Treasury’s quick exit from its holdings and the Dodd-Frank Act’s declaration of the end of bailouts, suggest that the U.S. government eventually succumbed to the mainstream opinion.

Such …

A Cleaner, Crispr Constitution: Germline Editing And Fundamental Rights, Andrew Cunningham

William & Mary Bill of Rights Journal

No abstract provided.

Can Judges Be Uncivilly Obedient?, Brannon P. Denning

William & Mary Law Review

In a recent article, Jessica Bulman-Pozen and David Pozen identified “uncivil obedience” as a tactic for protesting laws or regulations, not by violating the law, as with civil disobedience, but rather by scrupulous attendance to it. They noted that it is a tactic available to private and public actors alike, but were doubtful that a judicial variety existed. They were skeptical because, in their opinion, even hyper-formalist legal opinions would be unlikely to be perceived as provocative as scrupulous adherence to the letter of the law might be when practiced by non-judicial actors. In this Article, I argue that judicial …

Defending Jurisdiction, Scott Dodson

William & Mary Law Review Online

In an article entitled Jurisdiction and Its Effects, I argued that jurisdiction has inherent descriptive meaning but mutable effects. In response, Professor John Preis challenges my framework on a number of grounds and offers his own presumption-based approach. In this reply, I defend my original framework and register my own skepticism of his alternative approach.

Being Seen Like A State: How Americans (And Britons) Built The Constitutional Infrastructure Of A Developing Nation, Daniel J. Hulsebosch

William & Mary Law Review

This Article develops the argument that the Federal Constitution of 1787 was conceptualized, drafted, and put into operation not only for American citizens but also for foreign audiences. In a world without supranational governing institutions, a constitution—at least, the Federal Constitution—might serve to promote peaceable international relations based on reciprocal trade and open credit. That at least was the Enlightenment-inflected hope.

Did it work? If early Americans engaged in constitution-making in large part to demonstrate their capacity for self-government, selfdiscipline, and commercial openness to foreign audiences, did anyone notice? Or was it all, regardless of diplomatic purposes and consistent with …

Going … Going … Public? Taking A United States Professional Sports League Public, Ian A. Mclin

William & Mary Business Law Review

The four major American professional sports leagues—the MLB, NBA, NHL, and NFL—are wildly popular, but the leagues fail to capitalize fully on their success because they are organized in a largely inefficient manner. By organizing as unincorporated non-profits, leagues forgo their ability to raise capital via investors, forcing taxpayers to bear the burden of league investments such as new stadium construction. Further, the current organizational model creates a collective action problem, as self-interested team owners focus their support on actions that benefit their own franchise and leave ineffective commissioners in power.

A solution to these problems is for a professional …

Advancing Auer In An Era Of Retreat, Stephen M. Johnson

William & Mary Environmental Law and Policy Review

No abstract provided.

Judicial Departmentalism: An Introduction, Kevin C. Walsh

William & Mary Law Review

This Article introduces the idea of judicial departmentalism and argues for its superiority to judicial supremacy. Judicial supremacy is the idea that the Constitution means for everybody what the Supreme Court says it means in deciding a case. Judicial departmentalism, by contrast, is the idea that the Constitution means in the judicial department what the Supreme Court says it means in deciding a case. Within the judicial department, the law of judgments, the law of remedies, and the law of precedent combine to enable resolutions by the judicial department to achieve certain kinds of settlements. Judicial departmentalism holds that these …

In Defense Of Judicial Supremacy, Erwin Chemerinsky

William & Mary Law Review

“Judicial supremacy” is the idea that the Supreme Court should be viewed as the authoritative interpreter of the Constitution and that we should deem its decisions as binding on the other branches and levels of government, until and unless constitutional amendment or subsequent decision overrules them. This is desirable because we want to have an authoritative interpreter of the Constitution and the Court is best suited to play this role. Under this view, doctrines which keep federal courts from enforcing constitutional provisions—such as denying standing for generalized grievances, the political question doctrine, and the state secrets doctrine—are misguided and should …

Judicial Supremacy And Taking Conflicting Rights Seriously, Rebecca L. Brown

William & Mary Law Review

The best arguments in favor of judicial supremacy rely on its essential role of protecting rights in a democracy. The doctrinal technique of strict scrutiny, developed to do the work of judicial supremacy, has been an important tool in our constitutional jurisprudence in the service of rights protection. When the Supreme Court reviews laws that themselves seek to enhance or preserve constitutional rights, however, strict scrutiny does not provide the right approach. Rather, the Court should consider very carefully the rights claims in favor of the statute as well as those launched by a challenger. In such cases of conflicting …

The Annoying Constitution: Implications For The Allocation Of Interpretive Authority, Frederick Schauer

William & Mary Law Review

Constitutional constraints often restrict unwise or immoral official policies and actions, but also often invalidate laws and other official acts that are sound as a matter of both morality and policy. These second-order side constraints—or trumps—on even official acts that are sound as a matter of first-order policy reflect deeper or longerterm values, and they are central to understanding the very idea of constitutionalism. Moreover, once we see the Constitution as restricting not only the unsound and the unwise but also the sound and the wise, we can understand why expecting those whose sound ideas and policies are nevertheless unconstitutional …

Much Ado About Nothing: Signing Statements, Vetoes, And Presidential Constitutional Interpretation, Keith E. Whittington

William & Mary Law Review

During the Bush presidency, presidential signing statements became briefly controversial. The controversy has faded, but the White House continues to issue statements when signing legislation. Those statements frequently point out constitutional difficulties in new statutes and sometimes warn that the executive branch will administer the statutes so as to avoid those constitutional difficulties. This Article argues that the criticisms of signing statements were mostly misguided. Signing statements as such present few problems and offer some benefits to the workings of the American political system. While there might be reason to object to the substantive constitutional positions adopted in any given …

Why Congress Does Not Challenge Judicial Supremacy, Neal Devins

William & Mary Law Review

Members of Congress largely acquiesce to judicial supremacy both on constitutional and statutory interpretation questions. Lawmakers, however, do not formally embrace judicial supremacy; they rarely think about the courts when enacting legislation. This Article explains why this is so, focusing on why lawmakers have both strong incentive to acquiesce to judicial power and little incentive to advance a coherent view of congressional power. In particular, lawmakers are interested in advancing favored policies, winning reelection, and gaining personal power within Congress. Abstract questions of institutional power do not interest lawmakers and judicial defeats are seen as opportunities to find some other …

Judicial Supremacy Revisited: Independent Constitutional Authority In American Constitutional Law And Practice, Mark A. Graber

William & Mary Law Review

The Supreme Court exercises far less constitutional authority in American law and practice than one would gather from reading judicial opinions, presidential speeches, or the standard tomes for and against judicial supremacy. Lower federal court judges, state court justices, federal and state elected officials, persons charged with administering the law, and ordinary citizens often have the final say on particular constitutional controversies or exercise temporary constitutional authority in ways that have more influence on the parties to that controversy than the eventual Supreme Court decision. In many instances, Supreme Court doctrine sanctions or facilitates the exercise of independent constitutional authority …

Soft Supremacy, Corinna Barrett Lain

William & Mary Law Review

The debate over judicial supremacy has raged for more than a decade now, yet the conception of what it is we are arguing about remains grossly oversimplified and formalistic. My aim in this symposium contribution is to push the conversation in a more realistic direction; I want those who claim that judicial supremacy is antidemocratic to take on the concept as it actually exists. The stark truth is that judicial supremacy has remarkably little of the strength and hard edges that dominate the discourse in judicial supremacy debates. It is porous, contingent—soft. And the upshot of soft supremacy is this: …

Preemption As A Consistency Doctrine, Jesse Merriam

William & Mary Bill of Rights Journal

No abstract provided.

The Battle Over Scientific Whaling: A New Proposal To Stop Japan’S Lethal Research And Reform The International Whaling Commission, Laura Hoey

William & Mary Environmental Law and Policy Review

No abstract provided.

You Can’T Stop What You Can’T See: Complementary Risk Mitigation Through Compensation Disclosure, Matt Reeder

William & Mary Business Law Review

Section 956 of the Dodd-Frank Act requires regulators to help prevent the next financial crisis by monitoring executive compensation arrangements to prevent them from becoming excessive or leading to “material financial loss.” A now-pending rule seeks to do just this. This Article argues that the rule is well-conceived inasmuch as it limits the total portion of compensation that can be based on risk-inducing incentives, ties incentive-based compensation to longer-term performance, places a ceiling on potential incentivebased earnings, provides for downward adjustment and clawbacks, prohibits many hedging behaviors, and institutionalizes governance mechanisms and oversight policies. But, by placing a number of …

Immigrant Covering, Stella Burch Elias

William & Mary Law Review

Over the last ten years there has been a marked shift in U.S. immigration law away from reliance upon statutory authorization and regulatory provisions to subregulatory or “liminal” rules and discretionary decision-making. This trend is apparent in both federal immigration law and in state and local rulemaking affecting immigrant communities. This Article proposes a new theoretical framework within which to analyze this phenomenon. It uses “covering,” a legal theory first developed in the context of employment discrimination and equal protection, as a lens through which to view these recent developments in immigration law and policy. It shows how immigration laws …

Voting To End Vulnerability: Understanding The Recent Proliferation Of State-Level Child Sex Trafficking Legislation, Kate Price, Keith Gunnar Bentele

William & Mary Journal of Race, Gender, and Social Justice

This Article first focuses on the history of CSEC (commercially sexually exploited children) legislation in the United States by contextualizing the history of state anti-trafficking laws within the larger anti-trafficking policy framework of federal U.S. statutes and United Nations’ (U.N.) protocols. The second and third sections address the variables, statistical model, and results of our data analysis. The fourth section discusses the implications of these findings. The Article concludes with practical considerations for future CSEC legislative efforts on the state level.

When Sex Trafficking Victims Turn Eighteen: The Problematic Focus On Force, Fraud, And Coercion In U.S. Human Trafficking Laws, Julianne Siegfriedt

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

But First, (Don’T) Let Me Take A Selfie: New Hampshire’S Ban On Ballot Selfies And First Amendment Scrutiny, Emily Wagman

William & Mary Bill of Rights Journal

No abstract provided.

Military Sexual Trauma And Department Of Veterans Affairs Disability Compensation For Ptsd: Barriers, Evidentiary Burdens And Potential Remedies, Kaylee R. Gum

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

The Snakehead War: Administrative Rule-Making And Legislative Strategies To Minimize Destruction By The Northern Snakehead, Joshua Rice

William & Mary Environmental Law and Policy Review

No abstract provided.

Burgers, Doughnuts, And Expatriations: An Analysis Of The Tax Inversion Epidemic And A Solution Presented Through The Lens Of The Burger King-Tim Hortons Merger, Chris Capurso

William & Mary Business Law Review

Currently, the concept of tax inversion is a major corporate phenomenon. In the United States, companies pay taxes on all earnings, whether or not they were accumulated here. With one of the highest corporate tax rates in the world, this is a major expense for U.S. corporations competing in the world market. While most companies simply deal with the tax burden, some U.S. corporations buy foreign companies and relocate the company headquarters to the acquisition’s home country. This corporate expatriation allows companies to avoid U.S. taxes on earnings in a number of ways. This Note will examine tax inversion through …

Lessons From China’S Carbon Markets For U.S. Climate Change Policy, Susan Vermillion

William & Mary Environmental Law and Policy Review

No abstract provided.

Enforcement Activism Of The Eu’S Renewable Energy Directive During The Global Financial Crisis, Jon Truby

William & Mary Environmental Law and Policy Review

No abstract provided.