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Full-Text Articles in Law
Protean Statutory Interpretation In The Courts Of Appeals, James J. Brudney, Lawrence Baum
Protean Statutory Interpretation In The Courts Of Appeals, James J. Brudney, Lawrence Baum
William & Mary Law Review
This Article is the first in-depth empirical and doctrinal analysis of differences in statutory interpretation between the courts of appeals and the Supreme Court. It is also among the first to anticipate how the Supreme Court’s interpretive approach may shift with the passing of Justice Scalia.
We begin by identifying factors that may contribute to interpretive divergence between the two judicial levels, based on their different institutional structures and operational realities. In doing so, we discuss normative implications that may follow from the prospect of such interpretive divergence. We then examine how three circuit courts have used dictionaries and legislative …
Some Thoughts On The Study Of Judicial Behavior, Lee Epstein
Some Thoughts On The Study Of Judicial Behavior, Lee Epstein
William & Mary Law Review
Back in the 1940s the political scientist C. Herman Pritchett began tallying the votes and opinions of Supreme Court Justices. His goal was to use data to test the hypothesis that the Justices were not only following the “law,” but were also motivated by their own ideological preferences.
With the hindsight of nearly eighty years, we know that Pritchett’s seemingly small project helped to create a big field: Judicial Behavior, which I take to be the theoretical and empirical study of the choices judges make. Political scientists continue to play a central role, but they are now joined by economists, …
Neutral Principles And Some Campaign Finance Problems, John O. Mcginnis
Neutral Principles And Some Campaign Finance Problems, John O. Mcginnis
William & Mary Law Review
This Article has both positive and normative objectives. As a positive matter, it shows that the Roberts Courts campaign finance regulation jurisprudence can be best explained as a systematic effort to integrate that case law with the rest of the First Amendment, making the neutral principles refined in other social contexts govern this more politically salient one as well. It demonstrates that the typical Roberts Court majority in campaign finance cases follows precedent, doctrine, and traditional First Amendment theory, while the dissents tend to carve out exceptions at each of these levels.
As a normative matter, it argues that following …
The Rhetoric Of Constitutional Absolutism, Eric Berger
The Rhetoric Of Constitutional Absolutism, Eric Berger
William & Mary Law Review
Though constitutional doctrine is famously unpredictable, Supreme Court Justices often imbue their constitutional opinions with a sense of inevitability. Rather than concede that evidence is sometimes equivocal, Justices insist with great certainty that they have divined the correct answer. This Article examines this rhetoric of constitutional absolutism and its place in our broader popular constitutional discourse. After considering examples of the Justices’ rhetorical performances, this Article explores strategic, institutional, and psychological explanations for the phenomenon. It then turns to the rhetoric’s implications, weighing its costs and benefits. This Article ultimately argues that the costs outweigh the benefits and proposes a …
The Common Law Genius Of The Warren Court, David A. Strauss
The Common Law Genius Of The Warren Court, David A. Strauss
William & Mary Law Review
The Warren Court's most important decisions-on school segregation, reapportionment, free speech, and criminal procedure are firmly entrenched in the law. But the idea persists, even among those who are sympathetic to the results that the Warren Court reached, that what the Warren Court was doing was somehow not really law: that the Warren Court "made it up," and that the important Warren Court decisions cannot be justified by reference to conventional legal materials. It is true that the Warren Court's most important decisions cannot be easily justified on the basis of the text of the Constitution or the original understandings. …
Bridging The Enforcement Gap In Constitutional Law: A Critique Of The Supreme Court's Theory That Self-Restraint Promotes Federalism, Robert J. Pushaw Jr.
Bridging The Enforcement Gap In Constitutional Law: A Critique Of The Supreme Court's Theory That Self-Restraint Promotes Federalism, Robert J. Pushaw Jr.
William & Mary Law Review
No abstract provided.
Treating The Pen And The Sword As Constitutional Equals: How And Why The Supreme Court Should Apply Its First Amendment Expertise To The Great Second Amendment Debate, David G. Browne
William & Mary Law Review
No abstract provided.
Easing The Spring: Strict Scrutiny And Affirmative Action After The Redistricting Cases, Pamela S. Karlan
Easing The Spring: Strict Scrutiny And Affirmative Action After The Redistricting Cases, Pamela S. Karlan
William & Mary Law Review
No abstract provided.
Structural Review, Pseudo-Second-Look Decision Making, And The Risk Of Diluting Constitutional Liberty, Dan T. Coenen
Structural Review, Pseudo-Second-Look Decision Making, And The Risk Of Diluting Constitutional Liberty, Dan T. Coenen
William & Mary Law Review
No abstract provided.
Subconsitutional Constitutional Law: Supplement, Sham, Or Substitute?, Mark Tushnet
Subconsitutional Constitutional Law: Supplement, Sham, Or Substitute?, Mark Tushnet
William & Mary Law Review
No abstract provided.
A Constitution Of Collaboration: Protecting Fundamental Values With Second-Look Rules Of Interbranch Dialogue, Dan T. Coenen
A Constitution Of Collaboration: Protecting Fundamental Values With Second-Look Rules Of Interbranch Dialogue, Dan T. Coenen
William & Mary Law Review
No abstract provided.
Social Meaning And School Vouchers, Neal Devins
Social Meaning And School Vouchers, Neal Devins
William & Mary Law Review
No abstract provided.
Religion And The First Amendment: Some Causes Of The Recent Confusion, Carl H. Esbeck
Religion And The First Amendment: Some Causes Of The Recent Confusion, Carl H. Esbeck
William & Mary Law Review
No abstract provided.
Chief Justice Marshall, Justice Holmes, And The Discourse Of Constitutional Adjudication, G. Edward White
Chief Justice Marshall, Justice Holmes, And The Discourse Of Constitutional Adjudication, G. Edward White
William & Mary Law Review
No abstract provided.
The First Amendment And The Ideal Of Civic Courage: The Brandeis Opinion In Whitney V. California, Vincent Blasi
The First Amendment And The Ideal Of Civic Courage: The Brandeis Opinion In Whitney V. California, Vincent Blasi
William & Mary Law Review
No abstract provided.
The Functions, Roles, And Duties Of The Senate In The Supreme Court Appointment Process, William G. Ross
The Functions, Roles, And Duties Of The Senate In The Supreme Court Appointment Process, William G. Ross
William & Mary Law Review
No abstract provided.
Pullman Abstention After Pennhurst: A Comment On Judicial Federalism, Keith Werhan
Pullman Abstention After Pennhurst: A Comment On Judicial Federalism, Keith Werhan
William & Mary Law Review
No abstract provided.
A Lesson In Incaution, Overwork, And Fatigue: The Judicial Miscraftsmanship Of Segura V. United States, Joshua Dressler
A Lesson In Incaution, Overwork, And Fatigue: The Judicial Miscraftsmanship Of Segura V. United States, Joshua Dressler
William & Mary Law Review
No abstract provided.
The Supreme Court And Press Fashions, Robert Mason
The Supreme Court And Press Fashions, Robert Mason
William & Mary Law Review
No abstract provided.
Book Review Of Court And Constitution In The Twentieth Century, Paul G. Kauper
Book Review Of Court And Constitution In The Twentieth Century, Paul G. Kauper
William & Mary Law Review
No abstract provided.
Book Review Of The Sovereign Prerogative, John E. Donaldson
Book Review Of The Sovereign Prerogative, John E. Donaldson
William & Mary Law Review
No abstract provided.
Book Review Of Justices Black And Frankfurter: Conflict In The Court, Richard G. Stevens
Book Review Of Justices Black And Frankfurter: Conflict In The Court, Richard G. Stevens
William & Mary Law Review
No abstract provided.