Law Commons^™

Courts, Culture, And The Lethal Injection Stalemate, Eric Berger

William & Mary Law Review

The Supreme Court’s 2019 decision in Bucklew v. Precythe reiterated the Court’s great deference to states in Eighth Amendment lethal injection cases. The takeaway is that when it comes to execution protocols, states can do what they want. Events on the ground tell a very different story. Notwithstanding courts’ deference, executions have ground to a halt in numerous states, often due to lethal injection problems. State officials and the Court’s conservative Justices have blamed this development on “anti-death penalty activists” waging “guerilla war” on capital punishment. In reality, though, a variety of mostly uncoordinated actors motivated by a range of …

Preventing Parkland: A Workable Fourth Amendment Standard For Searching Juveniles' Smartphones Amid School Threats In A Post-Parkland World, Andrew Mueller

William & Mary Bill of Rights Journal

On February 14, 2018, Nikolas Cruz, age nineteen, went to the Marjory Stoneman Douglas High School campus in Parkland, Florida, armed with an AR-15 rifle. He opened fire, killing seventeen students. His unspeakable actions culminated in an attack, which eclipsed the 1999 Columbine High School Massacre to become the deadliest school shooting at a high school in American history. In the immediate months following this still-recent tragedy, schools across the United States were flooded with “copycat” threats of violence. Terroristic threat charges levied against juveniles have likewise skyrocketed.

These recent events have resulted in new and burdensome pressures for schools …

Secondary Meaning And Religion: An Analysis Of Religious Symbols In The Courts, Eric D. Yordy, Elizabeth Brown

William & Mary Bill of Rights Journal

In the Supreme Court’s most recent freedom of religion case, Justice Alito and Justice Ginsburg disagreed about the actual and potential meaning of the Latin cross, a traditional symbol of Christianity in which the upright leg of the cross is longer than the horizontal arms of the cross. Justice Alito stated that the Latin cross, while not losing its religious meaning, has acquired what might be called a “secondary meaning” as a symbol of World War I. He couched his analysis in language suggesting that a religious symbol’s meaning may depend on its circumstances. While he also denied that he …

Dissent, Disagreement And Doctrinal Disarray: Free Expression And The Roberts Court In 2020, Clay Calvert

William & Mary Bill of Rights Journal

Using the United States Supreme Court’s 2019 rulings in Manhattan Community Access Corp. v. Halleck, Nieves v. Bartlett, and Iancu v. Brunetti as analytical springboards, this Article explores multiple fractures among the Justices affecting the First Amendment freedoms of speech and press. All three cases involved dissents, with two cases each spawning five opinions. The clefts compound problems witnessed in 2018 with a pair of five-to-four decisions in National Institute of Family and Life Advocates v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. Partisan divides, the Article argues, are only one problem with First Amendment …

Abortion Case May Not Overturn Roe, But Could Effectively Nullify It, A. Benjamin Spencer

Popular Media

No abstract provided.

The Court Should Not Let Politically Divided Times Affects Its Choices And Decisions, Erwin Chemerinsky

William & Mary Law Review

The Court should not let politically divided times affect its choices or decisions. Altering the Court’s role in politically divided times would require a definition of what qualifies as such an era and a theory of how to act in such times. Almost every era in American history could be deemed a politically divided time. Changing the Court’s role in politically divided times is inconsistent with its preeminent role: interpreting and enforcing the Constitution. This role does not change, and should not change, in politically charged moments. Indeed, history shows that the Court cannot know what is likely to lessen …

Justices Make The Tough-- But Right-- Call In Cross-Border Shooting Case, A. Benjamin Spencer

Popular Media

No abstract provided.

Free-Speech Formalism And Social Injustice, Stephen M. Feldman

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

The Roberts Court has shifted constitutional law in a formalist direction. This Essay explains the Court’s formalism and its causes and consequences in First Amendment free-expression cases. The thesis is that the current conservative justices’ reliance on formalism intertwines with their attitudes toward public and private spheres of activity. Their attitudes toward the public-private dichotomy are, in turn, shaped by their political ideologies as well as by the contemporary practices of democratic government, which have shifted significantly over American history. Formalism contains an inherent political tilt favoring those who already wield power in the private sphere. Formalism favors the wealthy …