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Articles 1 - 30 of 35
Full-Text Articles in Law
The Trump Impeachments: Lessons For The Constitution, Presidents, Congress, Justice, Lawyers, And The Public, Michael J. Gerhardt
The Trump Impeachments: Lessons For The Constitution, Presidents, Congress, Justice, Lawyers, And The Public, Michael J. Gerhardt
William & Mary Law Review
The conventional wisdom is that the two impeachments of Donald Trump demonstrated the ineffectiveness of impeachment as a remedy for serious presidential misconduct. Meeting the constitutional threshold for conviction and removal requiring at least two-thirds approval of the Senate is practically impossible so long as the members of the President’s party in Congress control at least a third of the seats in the Senate and are united in opposition to his impeachment and conviction. This Article challenges this conventional wisdom and argues instead that the two Trump impeachments have enduring effects on Trump’s political future and legacy, especially in light …
Marriage Equality's Lessons For Social Movements And Constitutional Change, William N. Eskridge Jr.
Marriage Equality's Lessons For Social Movements And Constitutional Change, William N. Eskridge Jr.
William & Mary Law Review
The marriage equality movement won its first state victory in 2003, and within a dozen years fifty states were handing out marriage licenses. The swiftness of the constitutional triumph was only possible because public opinion underwent a sea change in that period. Sexual and gender minorities achieved this remarkable turnaround once a critical mass, widely dispersed in the country, came out of their closets as committed couples (often raising children), and mainstream America found their stories more consistent with their own lives than they did a generation earlier. Other lessons of marriage equality’s success, however, are how hard it is …
Constitutional Moral Hazard And Campus Speech, Jamal Greene
Constitutional Moral Hazard And Campus Speech, Jamal Greene
William & Mary Law Review
One underappreciated cost of constitutional rights enforcement is moral hazard. In economics, moral hazard refers to the increased propensity of insured individuals to engage in costly behavior. This Essay concerns what I call “constitutional moral hazard,” defined as the use of constitutional rights (or their conspicuous absence) to shield potentially destructive behavior from moral or pragmatic assessment. What I have in mind here is not simply the risk that people will make poor decisions when they have a right to do so, but that people may, at times, make poor decisions because they have a right. Moral hazard is not …
Pregnancy As A Normal Condition Of Employment: Comparative And Role-Based Accounts Of Discrimination, Reva B. Siegel
Pregnancy As A Normal Condition Of Employment: Comparative And Role-Based Accounts Of Discrimination, Reva B. Siegel
William & Mary Law Review
As the Pregnancy Discrimination Act of 1978 (PDA) turns forty, it is time to consider how we define pregnancy discrimination.
In recent years, courts have come to define pregnancy discrimination almost exclusively through comparison. Yet our understanding of discrimination, inside and outside the pregnancy context, depends on judgments about social roles as well as comparison. Both Congress and the Court appealed to social roles in defining the wrongs of pregnancy discrimination. In enacting the PDA, Congress repudiated employment practices premised on the view that motherhood is the end of women’s labor force participation, and affirmed a world in which women …
Appellate Deference In The Age Of Facts, Kenji Yoshino
Appellate Deference In The Age Of Facts, Kenji Yoshino
William & Mary Law Review
This Article explores the question of how much appellate deference is due to “legislative” facts, or broad social facts about the world, established by the district courts. While it is axiomatic that “adjudicative” facts—which are the “whodunit” facts specific to a case—receive clear error deference on appeal, the Supreme Court has yet to address the degree of deference due to legislative facts. While the dominant view among appellate courts is that legislative facts should only receive de novo review, the practice of the courts has in actuality been much more fitful and inconsistent. The standard may be unsettled in part …
Pro-Constitutional Representation: Comparing The Role Obligations Of Judges And Elected Representatives In Constitutional Democracy, Vicki C. Jackson
Pro-Constitutional Representation: Comparing The Role Obligations Of Judges And Elected Representatives In Constitutional Democracy, Vicki C. Jackson
William & Mary Law Review
The role of elected representatives in a constitutional democracy deserves more attention than it typically receives in law schools. Just as judges have a set of role obligations, which are widely discussed and debated, so, too, do representatives. Their obligations, however, are far less widely discussed in normative terms. Understandable reasons for this neglect exist, due to institutional differences between legislatures and courts, law schools' long-standing focus on courts, and the intensely competing demands on elected officials; but these factors do not justify the degree of silence on the normative obligations of representatives. This Essay seeks to introduce and defend …
Incapacitating The State, Daryl J. Levinson
Incapacitating The State, Daryl J. Levinson
William & Mary Law Review
No abstract provided.
Spandrel Or Frankenstein's Monster? The Vices And Virtues Of Retrofitting In American Law, Michael C. Dorf
Spandrel Or Frankenstein's Monster? The Vices And Virtues Of Retrofitting In American Law, Michael C. Dorf
William & Mary Law Review
No abstract provided.
Our Federalism(S), Heather K. Gerken
Interpretive Contestation And Legal Correctness, Matthew D. Adler
Interpretive Contestation And Legal Correctness, Matthew D. Adler
William & Mary Law Review
No abstract provided.
Imperial And Imperiled: The Curious State Of The Executive, Saikrishna B. Prakash
Imperial And Imperiled: The Curious State Of The Executive, Saikrishna B. Prakash
William & Mary Law Review
In the last four decades, the presidency has been characterized both as the "imperial presidency" as well as the "imperiled presidency. "From an originalist perspective, both camps have elements of truth on their side. When it comes to the conduct and initiation of wars, modern Presidents exercise powers that rival those the Crown possessed in England. Presidents claim the power to start wars, notwithstanding Congress's power to declare war. Moreover, Presidents insist that they have the sole right to determine how the armed forces will wage all wars, even though Congress clearly has considerable power over the armed forces. Law …
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. …
Federalism, Positive Law, And The Emergence Of The American Administrative State: Prohibition In The Taft Court Era, Robert Post
Federalism, Positive Law, And The Emergence Of The American Administrative State: Prohibition In The Taft Court Era, Robert Post
William & Mary Law Review
This Article offers a detailed analysis of major Taft Court decisions involving prohibition, including Olmstead v. United States, Carroll v. United States, United States v. Lanza, Lambert v. Yellowley, and Tumey v. Ohio. Prohibition, and the Eighteenth Amendment by which it was constitutionally entrenched, was the result of a social movement that fused progressive beliefs in efficiency with conservative beliefs in individual responsibility and self-control.
During the 1920s the Supreme Court was a strictly "bone-dry"institution that regularly sustained the administrative and law enforcement techniques deployed by the federal government in its losing effort to prevent the manufacture and sale of …
Sex, Politics, And Morality, Edward L. Rubin
Sex, Politics, And Morality, Edward L. Rubin
William & Mary Law Review
No abstract provided.
Collateral Damage: The Endangered Center In American Politics, Samuel Issacharoff
Collateral Damage: The Endangered Center In American Politics, Samuel Issacharoff
William & Mary Law Review
No abstract provided.
Establishment And Disestablishment At The Founding, Part I: Establishment Of Religion, Michael W. Mcconnell
Establishment And Disestablishment At The Founding, Part I: Establishment Of Religion, Michael W. Mcconnell
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.
The Constitution In Congress: Jefferson And The West, 1801-1809, David P. Currie
The Constitution In Congress: Jefferson And The West, 1801-1809, David P. Currie
William & Mary Law Review
No abstract provided.
The Free Exercise Thereof, Stephen L. Carter
The Free Exercise Thereof, Stephen L. Carter
William & Mary Law Review
No abstract provided.
Guns, Words, And Constitutional Interpretation, L. A. Powe Jr.
Guns, Words, And Constitutional Interpretation, L. A. Powe Jr.
William & Mary Law Review
No abstract provided.
The Many Faces Of Sexual Consent, William N. Eskridge Jr.
The Many Faces Of Sexual Consent, William N. Eskridge Jr.
William & Mary Law Review
No abstract provided.
Molecular Motions: The Holmesian Judge In Theory And Practice, Thomas C. Grey
Molecular Motions: The Holmesian Judge In Theory And Practice, Thomas C. Grey
William & Mary Law Review
No abstract provided.
Property, Federalism, And Jurisprudence: A Comment On Lucas And Judicial Conservativism, Frank I. Michelman
Property, Federalism, And Jurisprudence: A Comment On Lucas And Judicial Conservativism, Frank I. Michelman
William & Mary Law Review
No abstract provided.
The Left, The Right, And Certainty In Constitutional Law, Gene R. Nichol
The Left, The Right, And Certainty In Constitutional Law, Gene R. Nichol
William & Mary Law Review
No abstract provided.
Stripped Down Like A Runner Or Enriched By Experience: Bias And Impartiality Of Judges And Jurors, Martha Minow
Stripped Down Like A Runner Or Enriched By Experience: Bias And Impartiality Of Judges And Jurors, Martha Minow
William & Mary Law Review
No abstract provided.
The Second-Best First Amendment, Frederick Schauer
The Second-Best First Amendment, Frederick Schauer
William & Mary Law Review
No abstract provided.
Citizenship, Race, And Marginality, Kenneth L. Karst
Citizenship, Race, And Marginality, Kenneth L. Karst
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.
A Critique Of The "Liberal" Political-Philosophical Project, Michael J. Perry
A Critique Of The "Liberal" Political-Philosophical Project, Michael J. Perry
William & Mary Law Review
No abstract provided.
The Constitution As Compact And As Conscience: Individual Rights Abroad And At Our Gates, Louis Henkin
The Constitution As Compact And As Conscience: Individual Rights Abroad And At Our Gates, Louis Henkin
William & Mary Law Review
No abstract provided.