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- Gay Adoption (2)
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- Abortion (1)
- Administrative Law (1)
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- Adoption Records (1)
- America Invents Act of 2011 (1)
- Arizona Christian School Tuition Organization v. Winn (131 S. Ct. 1436 (2011)) (1)
- Bankruptcy Reorganization (1)
- Bond v. United States (131 S. Ct. 2355 (2011)) (1)
- Circumcision (1)
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- Consent (1)
- Democracy (1)
- Discrimination Against Gays (1)
- Dodd Frank Wall Street Reform and Consumer Protection Act of 2010 (1)
- Erie Railroad v. Tompkins (304 U.S. 64 (1938)) (1)
- Executive Power (1)
- Exemptions (1)
- Financial Risk (1)
- Flast v. Cohen (392 U.S. 83 (1968)) (1)
- Flores-Villar v. United States (131 S. Ct. 2312 (2011)) (1)
- Free Enterprise Fund v. Public Company Accounting Oversight Board (130 S. Ct. 3138 (2010)) (1)
- Freedom of Expression (1)
- Freedom of Speech (1)
Articles 1 - 26 of 26
Full-Text Articles in Law
Calming Unsettled Waters: A Proposal For Navigating The Tenuous Power Divide Between The Federal Courts And The Uspto Under The American Invents Act, William Rose
William & Mary Bill of Rights Journal
No abstract provided.
Reproductive Injustice In The New Millennium, Sybil Shainwald
Reproductive Injustice In The New Millennium, Sybil Shainwald
William & Mary Journal of Race, Gender, and Social Justice
A reexamination of the history of abortion law in the United States is essential to an understanding of recent changes. Part I of this Article will provide a synopsis of the early Anglo-American view of abortion at common law, the early anti-abortion statutes, and the state of abortion during the early twentieth century. Part II will discuss the liberalization of abortion laws, as well as the ways in which the law pertaining to a woman’s right to choose has evolved since 1973. Finally, Part III will analyze the constitutionality of the current wave of restrictions.
On Candor, Free Enterprise Fund, And The Theory Of The Unitary Executive, Michael J. Gerhardt
On Candor, Free Enterprise Fund, And The Theory Of The Unitary Executive, Michael J. Gerhardt
William & Mary Bill of Rights Journal
No abstract provided.
Statutory Interpretation As Constestatory Democracy, Glen Staszewski
Statutory Interpretation As Constestatory Democracy, Glen Staszewski
William & Mary Law Review
This Article provides a novel solution to the countermajoritarian difficulty in statutory interpretation by applying recent insights from civic republican theory to the adjudication of statutory disputes in the modern regulatory state. From a republican perspective, freedom consists of the absence of the potential for arbitrary domination, and democracy should therefore include both electoral and contestatory dimensions. The Article argues that statutory interpretation in the modern regulatory state is best understood as a mechanism of contestatory democracy. It develops this conception of statutory interpretation by considering the distinct roles of legislatures, administrative agencies, and courts in making and implementing the …
What Matters More: A Day In Jail Or A Criminal Conviction?, John P. Gross
What Matters More: A Day In Jail Or A Criminal Conviction?, John P. Gross
William & Mary Bill of Rights Journal
No abstract provided.
Power And Responsibility: Fourth Amendment Limits On The Use Of Molecular Scanners, Paul Wolfgramm Jr.
Power And Responsibility: Fourth Amendment Limits On The Use Of Molecular Scanners, Paul Wolfgramm Jr.
William & Mary Bill of Rights Journal
No abstract provided.
The Non-Redelegation Doctrine, F. Andrew Hesisck, Carissa Byrne Hessick
The Non-Redelegation Doctrine, F. Andrew Hesisck, Carissa Byrne Hessick
William & Mary Law Review
In United States v. Booker, the Court remedied a constitutional defect in the federal sentencing scheme by rendering advisory the then-binding sentencing guidelines promulgated by the U.S. Sentencing Commission. One important but overlooked consequence of this decision is that it redelegated the power to set sentencing policy from the Sentencing Commission to federal judges. District courts now may sentence based on their own policy views instead of being bound by the policy determinations rendered by the Commission.
This Article argues that, when faced with a decision that implicates an unambiguous delegation, the courts should not redelegate unless authorized by Congress …
The Federal Medical Loss Ratio: A Permissible Federal Regulation Or An Encroachment On State Power?, Meghan S. Stubblebine
The Federal Medical Loss Ratio: A Permissible Federal Regulation Or An Encroachment On State Power?, Meghan S. Stubblebine
William & Mary Law Review
No abstract provided.
The Eighth Amendment As A Warrant Against Undeserved Punishment, Scott W. Howe
The Eighth Amendment As A Warrant Against Undeserved Punishment, Scott W. Howe
William & Mary Bill of Rights Journal
Should the Eighth Amendment prohibit all undeserved criminal convictions and punishments? There are grounds to argue that it must. Correlation between the level of deserts of the accused and the severity of the sanction imposed represents the very idea of justice to most of us. We want to believe that those branded as criminals deserve blame for their conduct and that they deserve all of the punishment they receive. A deserts limitation is also key to explaining the decisions in which the Supreme Court has rejected convictions or punishments as disproportional, including several major rulings in the new millennium. Yet, …
A Winn For Originalism Puts Establishment Clause Reform Within Reach, Patrick T. Gillen
A Winn For Originalism Puts Establishment Clause Reform Within Reach, Patrick T. Gillen
William & Mary Bill of Rights Journal
No abstract provided.
The Dormant Second Amendment: Exploring The Rise, Fall, And Potential Resurrection Of Independent State Militias, Michael J. Golden
The Dormant Second Amendment: Exploring The Rise, Fall, And Potential Resurrection Of Independent State Militias, Michael J. Golden
William & Mary Bill of Rights Journal
The term “militia” is polarizing, misunderstood, misapplied, and generally difficult for modern Americans to digest. That is not surprising, given the depth and breadth of American militia history and militias’ substantial evolution over four centuries.
Historically, militia simply refers to a broad-based civic duty to protect one’s fellow citizens from internal and external dangers and is not limited to activities involving firearms. Reestablishing militia’s true meaning and purpose—and reinvigorating independent state militias in the United States to effect that purpose—has the potential to address states’ emerging financial and security gaps and to produce multiple other significant benefits, including recalibrating federalism. …
Distinguishing Between Custom And Law: Empirical Examples Of Endogeneity In Property And First Amendment Precedents, Daniel L. Chen, Susan Yeh
Distinguishing Between Custom And Law: Empirical Examples Of Endogeneity In Property And First Amendment Precedents, Daniel L. Chen, Susan Yeh
William & Mary Bill of Rights Journal
No abstract provided.
The Federal Circuit As A Federal Court, Paul R. Gugliuzza
The Federal Circuit As A Federal Court, Paul R. Gugliuzza
William & Mary Law Review
The U.S. Court of Appeals for the Federal Circuit has exclusive jurisdiction over patent appeals and, as a consequence, the last word on many legal issues important to innovation policy. This Article shows how the Federal Circuit augments its already significant power by impeding other government institutions from influencing the patent system. Specifically, the Federal Circuit has shaped patent-law doctrine, along with rules of jurisdiction, procedure, and administrative law, to preserve and expand the court's power in four interinstitutional relationships: the court's federalism relationship with state courts, its separation of powers relationship with the executive and legislative branches, its vertical …
Speech, Intent, And The Chilling Effect, Leslie Kendrick
Speech, Intent, And The Chilling Effect, Leslie Kendrick
William & Mary Law Review
Speaker’s intent requirements are a common but unremarked feature of First Amendment law. From the “actual malice” standard for defamation to the specific-intent requirement for incitement, many types of expression are protected or unprotected depending on the state of mind with which they are said. To the extent that courts and commentators have considered why speaker’s intent should determine First Amendment protection, they have relied upon the chilling effect. On this view, imposing strict liability for harmful speech, such as defamatory statements, would overdeter, or chill, valuable speech, such as true political information. Intent requirements are necessary prophylactically to provide …
Privacy And Consent Over Time: The Role Of Agreement In Fourth Amendment Analysis, Christine Jolls
Privacy And Consent Over Time: The Role Of Agreement In Fourth Amendment Analysis, Christine Jolls
William & Mary Law Review
No abstract provided.
Constitutional Remedies And Public Interest Balancing, John M. Greabe
Constitutional Remedies And Public Interest Balancing, John M. Greabe
William & Mary Bill of Rights Journal
The conventional account of our remedial tradition recognizes that courts may engage in discretionary public interest balancing to withhold the specific remedies typically administered in equity. But it generally does not acknowledge that courts possess the same power with respect to the substitutionary remedies usually provided at law. The conventional account has things backwards when it comes to constitutional remedies. The modern Supreme Court frequently requires the withholding of substitutionary constitutional relief under doctrines developed to protect the perceived public interest. Yet it has treated specific relief to remedy ongoing or imminent invasions of rights as routine, at least when …
Social Science Studies And The Children Of Lesbians And Gay Men: The Rational Basis Perspective, Carlos A. Ball
Social Science Studies And The Children Of Lesbians And Gay Men: The Rational Basis Perspective, Carlos A. Ball
William & Mary Bill of Rights Journal
This Article seeks to determine whether the social science literature on the children of lesbians and gay men precludes the government from relying on child welfare considerations to justify same-sex marriage bans and parenting restrictions affecting lesbians and gay men under the highly deferential rational basis test. Under that test, courts must uphold laws and regulations that have any conceivable basis of fact which is rationally related to a legitimate state interest. After comprehensively reviewing the social science literature, the Article concludes that the empirical evidence showing the lack of an association between parental sexual orientation and the psychological and …
To Cut Or Not To Cut?: Addressing Proposals To Ban Circumcision Under Both A Parental Rights Theory And Child-Centered Perspective In The Specific Context Of Jewish And Muslim Infants, Andrew E. Behrns
William & Mary Bill of Rights Journal
No abstract provided.
Dodd-Frank's Title Ii Authority: A Disorderly Liquidation Of Experience, Logic, And Due Process, Chadwick Welch
Dodd-Frank's Title Ii Authority: A Disorderly Liquidation Of Experience, Logic, And Due Process, Chadwick Welch
William & Mary Bill of Rights Journal
No abstract provided.
Knowledge Is Power: The Fundamental Right To Record Present Observations In Public, Travis Gunn
Knowledge Is Power: The Fundamental Right To Record Present Observations In Public, Travis Gunn
William & Mary Law Review
No abstract provided.
Lawrence's Stealth Constitutionalism And Same-Sex Marriage Litigation, Eric Berger
Lawrence's Stealth Constitutionalism And Same-Sex Marriage Litigation, Eric Berger
William & Mary Bill of Rights Journal
Constitutional law scholarship often focuses on two taxonomies: doctrinal categories and interpretive methodologies. Consequently, constitutional scholars sometimes neglect other important facets of constitutional decisionmaking, particularly extra-doctrinal stealth determinations that courts render frequently in constitutional opinions. The U.S. Supreme Court regularly confronts the questions underlying these determinations, but despite their centrality to constitutional decisionmaking, these issues often escape careful scrutiny.
Lawrence v. Texas exemplifies the phenomenon. Lawrence framed its central question at a broad level of generality; relied on hybrid reasoning, using equal-protection rationales to support a substantive due process holding; declined to identify a level of scrutiny; and invoked changing …
Crossing The Final Border: Securing Equal Gender Protection In Immigration Cases, Michelle L. Sudano
Crossing The Final Border: Securing Equal Gender Protection In Immigration Cases, Michelle L. Sudano
William & Mary Bill of Rights Journal
No abstract provided.
Sex Segregation In Public Schools: Separate But Equal?, Lily A. Saffer
Sex Segregation In Public Schools: Separate But Equal?, Lily A. Saffer
William & Mary Journal of Race, Gender, and Social Justice
No abstract provided.
Half Faith And Credit?: The Fifth Circuit Upholds Louisiana's Refusal To Issue A Revised Birth Certificate, Thomas M. Joraanstad
Half Faith And Credit?: The Fifth Circuit Upholds Louisiana's Refusal To Issue A Revised Birth Certificate, Thomas M. Joraanstad
William & Mary Journal of Race, Gender, and Social Justice
No abstract provided.
Valid Rule Due Process Challenges: Bond V. United States And Erie's Constitutional Source, Kermit Roosevelt Iii
Valid Rule Due Process Challenges: Bond V. United States And Erie's Constitutional Source, Kermit Roosevelt Iii
William & Mary Law Review
No abstract provided.
A General Theory Of Governance: Due Process And Lawmaking Power, Louise Weinberg
A General Theory Of Governance: Due Process And Lawmaking Power, Louise Weinberg
William & Mary Law Review
This Article proposes a general theory describing the nature and sources of law in American courts. Erie Railroad Co. v. Tompkins is rejected for this purpose. Better, more general theory is available, flowing from the Due Process Clauses. At its narrowest, the proposed theory is consonant with Erie but generalizes it, embracing federal as well as state law and statutory as well as decisional law in both state and federal courts. More broadly, beyond this unification of systemic thinking, the interest-analytic methodology characteristic of due process extends to a range of substantive constitutional problems. These include problems concerning both the …