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Articles 1 - 9 of 9
Full-Text Articles in Law
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 …
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 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.
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.
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 …