Open Access. Powered by Scholars. Published by Universities.®
- Keyword
-
- United States. Supreme Court (23)
- Constitutional Law (4)
- Federal Courts (4)
- Criminal Procedure (3)
- Injunctions (2)
-
- Law Enforcement (2)
- Legal Precedent (2)
- Partisanship (2)
- Searches and Seizures (2)
- Stare Decisis (2)
- Supreme Court Justices (2)
- United States Constitution 4th Amendment (2)
- United States Supreme Court (2)
- Abortion (1)
- And dismissals (1)
- Appellate Courts (1)
- Appellate Jurisdiction (1)
- Appellate Procedure (1)
- Basic (1)
- Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics 403 U.S. 388 (1971) (1)
- Bucklew v. Precythe (1)
- Capital punishment (1)
- Certiorari (1)
- Courts of Last Resort (1)
- Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (1)
- Double Jeopardy (1)
- Dred Scott v. Sandford 60 U.S. (19 How.) 393 (1857) (1)
- Dual Sovereignty (1)
- Due Process of Law (1)
- Eighth Amendment protections (United States Constitution) (1)
- Publication
- Publication Type
Articles 1 - 30 of 32
Full-Text Articles in Law
Eager To Follow: Methodological Precedent In Statutory Interpretation, Aaron-Andrew P. Bruhl
Eager To Follow: Methodological Precedent In Statutory Interpretation, Aaron-Andrew P. Bruhl
Faculty Publications
An important recent development in the field of statutory interpretation is the emergence of a movement calling for "methodological precedent"--a regime under which courts give precedential effect to interpretive methodology. In such a system, a case would establish not only what a particular statute means but could also establish binding rules of methodology--which tools are valid, in what order, and so on. The movement for methodological precedent has attracted sharp criticism on normative grounds. But both sides of the normative debate agree on the premise that the federal courts generally do not give precedential effect to interpretive methodology today.
This …
The Remand Power And The Supreme Court's Role, Aaron-Andrew P. Bruhl
The Remand Power And The Supreme Court's Role, Aaron-Andrew P. Bruhl
Faculty Publications
"Reversed and remanded." Or "vacated and remanded." These familiar words, often found at the end of an appellate decision, emphasize that an appellate court's conclusion that the lower court erred generally does not end the litigation. The power to remand for further proceedings rather than wrap up a case is useful for appellate courts because they may lack the institutional competence to bring the case to a final resolution (as when new factual findings are necessary) or lack an interest in the fact-specific work of applying a newly announced legal standard to the particular circumstances at hand. The modern Supreme …
Argument Analysis: Justices Spar Over Stare Decisis, Originalism, Text And What Counts As A Fourth Amendment “Seizure”, Jeffrey Bellin
Argument Analysis: Justices Spar Over Stare Decisis, Originalism, Text And What Counts As A Fourth Amendment “Seizure”, Jeffrey Bellin
Popular Media
No abstract provided.
Case Preview: When Is A Fleeing Suspect “Seized”?, Jeffrey Bellin
Case Preview: When Is A Fleeing Suspect “Seized”?, Jeffrey Bellin
Popular Media
The Fourth Amendment prohibits unreasonable “searches” and “seizures.” On Wednesday, the Supreme Court is scheduled to hear oral argument in Torres v. Madrid, a case that will provide important guidance on what constitutes a Fourth Amendment seizure. Here’s a rundown of the case starting with the relevant facts and procedural history, followed by a discussion of the legal issues and finally a couple of things to watch for at the argument.
Janus-Faced Judging: How The Supreme Court Is Radically Weakening Stare Decisis, Michael Gentithes
Janus-Faced Judging: How The Supreme Court Is Radically Weakening Stare Decisis, Michael Gentithes
William & Mary Law Review
Drastic changes in Supreme Court doctrine require citizens to reorder their affairs rapidly, undermining their trust in the judiciary. Stare decisis has traditionally limited the pace of such change on the Court. It is a bulwark against wholesale jurisprudential reversals. But, in recent years, the stare decisis doctrine has come under threat.
With little public or scholarly notice, the Supreme Court has radically weakened stare decisis in two ways. First, the Court has reversed its long-standing view that a precedent, regardless of the quality of its reasoning, should stand unless there is some special, practical justification to overrule it. Recent …
Courts, Culture, And The Lethal Injection Stalemate, Eric Berger
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 …
As She Lies In State, A Tribute To Justice Ginsburg, Katherine Mims Crocker
As She Lies In State, A Tribute To Justice Ginsburg, Katherine Mims Crocker
Popular Media
No abstract provided.
2020-2021 Supreme Court Preview: Notebook Cover Page, Allison Orr Larsen, Neal Devins, Rebecca Green, Institute Of Bill Of Rights Law, William & Mary Law School
2020-2021 Supreme Court Preview: Notebook Cover Page, Allison Orr Larsen, Neal Devins, Rebecca Green, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
Our traditional notebook will not be available this year due to the virtual setting. However, we have compiled this virtual notebook to provide all participating in the Supreme Court Preview an opportunity to learn more about the upcoming docket and the issues facing the Court. We hope you enjoy the wealth of information available throughout this virtual notebook.
2020-2021 Supreme Court Preview: Schedule Of Events, Institute Of Bill Of Rights Law, William & Mary Law School
2020-2021 Supreme Court Preview: Schedule Of Events, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
2020-2021 Supreme Court Preview: Biographies Of 2020 Supreme Court Preview Panelists, Institute Of Bill Of Rights Law, William & Mary Law School
2020-2021 Supreme Court Preview: Biographies Of 2020 Supreme Court Preview Panelists, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
The Supreme Court And The 2020 Election: What Challenges Are Likely And What Will Be The Supreme Court's Role In Deciding Them?, Institute Of Bill Of Rights Law, William & Mary Law School
The Supreme Court And The 2020 Election: What Challenges Are Likely And What Will Be The Supreme Court's Role In Deciding Them?, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
On Friday, September 11 at 5:30pm, the Supreme Court Preview will feature a panel on "The Supreme Court and the 2020 Election What Challenges are likely and what will be the Supreme Court's Role in Deciding them?" As we approach a historic election in November 2020, many anticipate that election challenges will wind up in federal court. This panel will discuss trends in COVID-related election cases at the Court so far, anticipate which challenges are likely going forward, and will speculate what the Supreme Court’s role will be in deciding them. What has changed at the Court (and otherwise) since …
What Is The Future Of The Supreme Court? Potential Reforms, Their Likelihood, And Their Implications, Institute Of Bill Of Rights Law, William & Mary Law School
What Is The Future Of The Supreme Court? Potential Reforms, Their Likelihood, And Their Implications, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
On Saturday, September 12 at 4:15pm, the Supreme Court Preview will feature a panel on "What is the Future of the Supreme Court? Potential Reforms, Their Likelihood, and Their Implications." Democrats recently unveiled “structural court reforms” as part of their platform. These potential reforms include, among others, adding seats to the Supreme Court, making changes to the confirmation process, and shortening the Justices’ terms of office. This panel will discuss which reforms seem most likely to be adopted and what concerns are motivating them. Twenty-five W&M students will also bring their questions to the panel about the future of the …
Who Is The Real John Roberts? Predicting The Surprises Of The Fall Term, Institute Of Bill Of Rights Law, William & Mary Law School
Who Is The Real John Roberts? Predicting The Surprises Of The Fall Term, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
On Saturday, September 12 at 3:00pm, the Supreme Court Preview will feature a panel on "Who is the Real John Roberts? Predicting the Surprises of the Fall Term." Chief Justice Roberts cast several votes in high-profile cases last Term that many found to be surprising, and it led to a debate over whether the Chief Justice should be described as a moderate or not. This panel will anticipate which cases in the 2020-2021 Term will provide an opportunity for the Chief Justice to cast the deciding vote, and will address whether the Chief Justice’s voting pattern in 2020 was indicative …
Transparency And The Shadow Docket, Institute Of Bill Of Rights Law, William & Mary Law School
Transparency And The Shadow Docket, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
On Saturday, September 12 at 2:00pm, the Supreme Court Preview will feature a panel on "Transparency and the Shadow Docket." “The shadow docket” is a phrase used to describe the significant volume of orders and summary decisions that the Supreme Court issues without full briefing and oral argument. This panel will discuss what is new and what is not about the shadow docket. The panelists will speculate on the ways in which the Court will use these orders going forward, and will discuss the upsides and downsides of doing so.
Granted Cases, Institute Of Bill Of Rights Law, William & Mary Law School
Granted Cases, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Moot Court, Institute Of Bill Of Rights Law, William & Mary Law School
Moot Court, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Secondary Meaning And Religion: An Analysis Of Religious Symbols In The Courts, Eric D. Yordy, Elizabeth Brown
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
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 …
United States Patent And Trademark Office V. Booking.Com B.V.: How Do We Know When Something Is A Name?, Laura A. Heymann
United States Patent And Trademark Office V. Booking.Com B.V.: How Do We Know When Something Is A Name?, Laura A. Heymann
Popular Media
No abstract provided.
Kill Cammer: Securities Litigation Without Junk Science, J. B. Heaton
Kill Cammer: Securities Litigation Without Junk Science, J. B. Heaton
William & Mary Business Law Review
Securities litigation is a hotbed of junk science concerning market efficiency. This Article explains why and suggests a way out. In its 1988 decision in Basic v. Levinson, the Supreme Court endorsed the fraud on the market presumption for securities traded in an efficient market. Faced with the task of determining market efficiency, courts throughout the nation embraced the ad hoc speculations of a first-mover district court that proclaimed, in Cammer v. Bloom, how to allege (and presumably prove) facts that would do just that. The Cammer court’s analysis did not rely on financial economics for its notions, but instead …
Securities Exchange Act Section 4e(A): Toothless "Internal-Timing Directive" Or Statute Of Limitation?, Richard E. Brodsky
Securities Exchange Act Section 4e(A): Toothless "Internal-Timing Directive" Or Statute Of Limitation?, Richard E. Brodsky
William & Mary Business Law Review
The Securities and Exchange Commission has a problem, and everyone knows it: its investigative process suffers from excessive delay, which harms both individuals and entity it investigates and its own enforcement program. This problem has long been recognized and complained about, but never remedied.
In 2010, Congress passed a law specifically designed to solve the problem of excessive delay but, the way the SEC has read the law—which has been acquiesced in by the courts and ignored by subsequent Congresses—has rendered it toothless and essentially meaningless. This has been accomplished, first, by the Commission’s cabined interpretation of the purpose of …
Second Guessing Double Jeopardy: The Stare Decisis Factors As Proxy Tools For Original Correctness, Justin W. Aimonetti
Second Guessing Double Jeopardy: The Stare Decisis Factors As Proxy Tools For Original Correctness, Justin W. Aimonetti
William & Mary Law Review Online
In Gamble v. United States, the Supreme Court reaffirmed the 170-year-old dual-sovereignty doctrine. That doctrine permits both the federal and state governments—as “separate sovereigns”—to each prosecute a defendant for the same offense. Justice Thomas concurred with the majority opinion in Gamble, but wrote separately to reject the traditional stare decisis formulation. In particular, the factors the majority used to evaluate stare decisis, in his view, amount to nothing more than marbles placed subjectively on either side of the stare decisis balancing scale. He would have preferred, instead, an inquiry into whether the precedent was demonstrably erroneous as an original matter, …
Abortion Case May Not Overturn Roe, But Could Effectively Nullify It, A. Benjamin Spencer
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
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 …
The Judicial Reforms Of 1937, Barry Cushman
The Judicial Reforms Of 1937, Barry Cushman
William & Mary Law Review
The literature on reform of the federal courts in 1937 understandably focuses on the history and consequences of President Franklin D. Roosevelt’s ill-fated proposal to increase the membership of the Supreme Court. A series of decisions declaring various components of the New Deal unconstitutional had persuaded Roosevelt and some of his advisors that the best way out of the impasse was to enlarge the number of justiceships and to appoint to the new positions jurists who would be “dependable” supporters of the administration’s program. Yet Roosevelt and congressional Democrats also were deeply troubled by what they perceived as judicial obstruction …
Packing And Unpacking State Courts, Marin K. Levy
Packing And Unpacking State Courts, Marin K. Levy
William & Mary Law Review
When it comes to court packing, questions of “should” and “can” are inextricably intertwined. The conventional wisdom has long been that federal court packing is something the President and Congress simply cannot do. Even though the Constitution’s text does not directly prohibit expanding or contracting the size of courts for political gain, many have argued that there is a longstanding norm against doing so, stemming from a commitment to judicial independence and separation of powers. And so (the argument goes), even though the political branches might otherwise be tempted to add or subtract seats to change the Court’s ideological makeup, …
Crisis? Whose Crisis?, Jack M. Beermann
Crisis? Whose Crisis?, Jack M. Beermann
William & Mary Law Review
Every moment in human history can be characterized by someone as “socially and politically charged.” For a large portion of the population of the United States, nearly the entire history of the country has been socially and politically charged, first because they were enslaved and then because they were subjected to discriminatory laws and unequal treatment under what became known as “Jim Crow.” The history of the United States has also been a period of social and political upheaval for American Indians, the people who occupied the territory that became the United States before European settlement. Although both African-Americans and …
Justices Make The Tough-- But Right-- Call In Cross-Border Shooting Case, A. Benjamin Spencer
Justices Make The Tough-- But Right-- Call In Cross-Border Shooting Case, A. Benjamin Spencer
Popular Media
No abstract provided.
First, We'll Neuter All The Judges, A. Benjamin Spencer
First, We'll Neuter All The Judges, A. Benjamin Spencer
Popular Media
No abstract provided.
Summary Dispositions As Precedent, Richard C. Chen
Summary Dispositions As Precedent, Richard C. Chen
William & Mary Law Review
The Supreme Court’s practice of summarily reversing decisions based on certiorari filings, without the benefit of merits briefing or oral argument, has recently come under increasing scrutiny. The practice is difficult to square with the Court’s stated criteria for granting certiorari and its norms against reviewing fact-bound cases to engage in mere error correction. Nonetheless, there is growing acceptance that the practice is likely to continue in some form, and the conversation has shifted to asking when the use of summary dispositions should be considered proper. Commentators have had no trouble identifying the Court’s tendencies: summary dispositions are most commonly …