Law Commons^™

On The Nexus Between The Strength Of The Separation Of Powers And The Power Of The Judiciary, Rivka Weill

William & Mary Bill of Rights Journal

This Article makes four novel arguments: (1) There is an inverse relationship between the strength of a separation of powers structure and the strength of the judiciary. In a strong separation of powers structure, one should expect a weaker judiciary, and vice versa. This nexus exists empirically, and is supported on normative and strategic grounds. (2) This nexus is manifested through a web of common law doctrines that developed to support a given separation of powers structure and shape the judicial oversight of the political branches. This Article identifies a list of common law doctrines—including standing, justiciability, deference, and judicial …

Answering The Political Question: Demonstrating An Intent-Based Framework For Partisan Gerrymandering, Kyle H. Keraga

William & Mary Bill of Rights Journal

Partisan gerrymandering is widely recognized as a threat to the foundations of our democracy. Political parties with control over their state legislatures routinely leverage the redistricting process to entrench themselves in power—suppressing political adversaries, chilling public participation, and polarizing the electorate. Nevertheless, despite a persistent recognition that partisan gerrymandering is incompatible with basic democratic principles, the Supreme Court struggled to develop a stable and consistent doctrinal approach to this issue, even as reliable standards emerged to adjudicate malapportionment and racial gerrymandering claims. Recently, in Rucho v. Common Cause, the Court abandoned the search entirely, holding that partisan gerrymandering is …

The Legal Origins Of Catholic Conscientious Objection, Jeremy Kessler

William & Mary Bill of Rights Journal

This Article traces the origins of Catholic conscientious objection as a theory and practice of American constitutionalism. It argues that Catholic conscientious objection emerged during the 1960s from a confluence of left-wing and right-wing Catholic efforts to participate in American democratic culture more fully. The refusal of the American government to allow legitimate Catholic conscientious objection to the Vietnam War became a cause célèbre for clerical and lay leaders and provided a blueprint for Catholic legal critiques of other forms of federal regulation in the late 1960s and early 1970s—most especially regulations concerning the provision of contraception and abortion.

Over …

A New Takings Clause? The Implications Of Cedar Point Nursery V. Hassid For Property Rights And Moratoria, Benjamin Alexander Mogren

William & Mary Bill of Rights Journal

In part, the Fifth Amendment to the Constitution holds that “no person . . . shall [have their] private property . . . taken for public use, without just compensation.” In Cedar Point Nursery v. Hassid, the U.S. Supreme Court ruled that “a California regulation that permits union organizers to enter the property of agricultural business to talk with employees about supporting a union is unconstitutional.” The purpose of this Note is to discuss what Cedar Point Nursery means generally for the future of Takings Clause analysis and will argue that Cedar Point Nursery should be seen as a …

Judges And Mass Incarceration, Carissa Byrne Hessick

William & Mary Bill of Rights Journal

It seems to have fallen out of fashion to talk about judges as a source of criminal justice reform. Instead, the academic literature now focuses on the role that prosecutors and legislatures have played in mass incarceration. But judges have also played an important role in the phenomenon that has come to be known as mass incarceration. Perhaps more importantly, there are things that judges could do to help reverse that trend.

Judges will sometimes say our system is too harsh. But, in the same breath they tell us the decision to create such a system and the decision to …

The Collective Right Endures: Pre-Heller Precedent And Our Understanding Of The Modern Second Amendment, William Reach

William & Mary Bill of Rights Journal

Prior to 2008, legal scholars who examined the Second Amendment fell roughly into two camps: those who believed “the right of the people to . . . bear arms” only covered state militias, and those who believed it extended to individual citizens.

After District of Columbia v. Heller conclusively established that the “Second Amendment conferred an individual right to keep and bear arms," discussion of the collective right to bear arms largely receded from public discussion and most litigation surrounding the Second Amendment shifted to define the outer edges of the individual right. But the pre-Heller showdown between these …

Automated Government For Vulnerable Citizens: Intermediating Rights, Sofia Ranchordás, Luisa Scarcella

William & Mary Bill of Rights Journal

Filing tax returns or applying for unemployment benefits are some of the most common government transactions. Yet interacting with tax and social security authorities is for many a source of government anxiety. Bureaucracy, regulatory delays, and the complexity of the administrative legal system have been regarded for decades as the key reasons for this problem. Digital government promised a solution in the shape of simplified forms, electronic filing, and better communication with citizens. In the United States, privately developed software systems such as TurboTax and MiDAS emerged as intermediaries between citizens and digital government, selling convenience and efficiency. These systems …

Debiasing Criminal Justice, Sandra Guerra Thompson, Nicole Bremner Cásarez

William & Mary Bill of Rights Journal

The killing of George Floyd by police officers in Minnesota inspired a summer of protests in 2020, followed by a call for racial reckoning and a professed commitment to reform criminal justice. Many have condemned the “systemic racism” reflected in countless demographic measures. From killings of unarmed men by the police at the front end of the criminal justice system to incarceration rates at the back end, the statistics show stark disparities along racial lines. These disparities are held up as evidence of racial bias in the system.

Statements about racial bias may be intended as an indictment of a …

The Trump Clemencies: Celebrities, Chaos, And Lost Opportunity, Mark Osler

William & Mary Bill of Rights Journal

The presidency of Donald Trump may have produced the most chaotic use of the constitutional pardon power in American history. Trump granted clemency to war criminals, to close friends, to celebrities, and to the friends of celebrities, with much of it coming in a mad rush at the end of his single term. Buried beneath this rolling disaster was a brief moment of hope and a lost opportunity: the chance for a restructure of the clemency process in the fall of 2018, enabled by a rare alignment of factors, including Trump’s alienation from the Department of Justice. This Article will …

Indoctrination By Elimination: Why Banning Critical Race Theory In Public Schools Is Unconstitutional, Emma Postel

William & Mary Bill of Rights Journal

This Note argues that Texas public school students’ First Amendment Rights have been violated by the passage of Senate Bill 3 (SB 3), which bans the teaching of Critical Race Theory (CRT) in K–12 public schools. The First Amendment is violated here because (1) students have a First Amendment right to speech, and this law bans protected speech; (2) students have a right to receive information, and this ban prevents them from receiving information; and (3) schools are meant to be the marketplace of ideas for students and banning CRT amounts to unconstitutional viewpoint discrimination. This Note does not suggest …

Constitutional Memories, Jack M. Balkin

William & Mary Bill of Rights Journal

Many arguments in constitutional law invoke collective memory. Collective memory is what a group—for example, a religion, a profession, a people, or a nation—remembers and forgets about its past. This combination of remembering and forgetting helps constitute the group’s identity and structures its values and its commitments. Precisely because memory is selective, it may or may not correspond to the best account of historical facts.

The use of collective memory in constitutional argument is constitutional memory. It shapes people’s views about what the law means and why people have authority. Lawyers and judges continually invoke and construct memory; judicial decisions …

Jail Health And Early Release Practices, Brandon L. Garrett, Deniz Ariturk, Jessica Carda-Auten, David L. Rosen

William & Mary Bill of Rights Journal

Local jails in the United States incarcerate millions of people each year. The COVID-19 pandemic made jail health a pressing public health concern nationally, where releasing individuals from jails occurred across the country in order to prevent pandemic spread. But releases also faced substantial resistance and exposed long-standing challenges in delivering adequate healthcare in jail settings. People in jail have substantially higher levels of medical need than individuals in the general population, with large numbers having serious mental illnesses and substance use disorders. Further, overcrowded conditions and poor healthcare standards and delivery make jails harmful to those already-vulnerable people. What …

Making Hazelwood Age-Appropriate: How Viewpoint Neutrality And Recontextualizing The Age-Appropriate Standard Might Save School-Sponsored Lgbt Speech, Rebecca Girardin

William & Mary Bill of Rights Journal

Younger people are identifying as lesbian, gay, bisexual, or transgender (henceforth “LGBT”) more than any previous generation. Likewise, there has been a proliferation of free-speech litigation involving student speech that discusses LGBT issues. Beyond just LGBT speech in school, there has been a recent resurgence in the discussion around the relationship between parents, students, school administrators, and school boards when it comes to regulating school-sponsored speech.

Besides the growing number of students identifying as LGBT, protecting LGBT speech in school is of particular importance because the manner in which a school deals with LGBT speech directly influences the mental health …

Liberalism Triumphant? Ideology And The En Banc Process In The Ninth Circuit Court Of Appeals, Arthur D. Hellman

William & Mary Bill of Rights Journal

More than 40 years ago, President Jimmy Carter, a Democrat, appointed 15 of the then-23 judges of the Ninth Circuit Court of Appeals. Those judges were predominantly liberal, and some were extremely liberal. Ever since then, the Ninth Circuit has been widely regarded as “a reliably liberal appeals court” that predictably issues “rulings favorable to liberal causes.” But some knowledgeable commentators, including Professor (now Dean) Erwin Chemerinsky, have disputed the characterization, calling it a “myth.”

Until now, no one has empirically tested whether the Ninth Circuit is indeed the liberal bastion that it is reputed to be. That is the …

Ducking The System: Examining The Efficacy Of Bounty Hunting Statutes That Stifle The Free Exercise Of Constitutional Rights, Allie Zunski

William & Mary Bill of Rights Journal

[...] This Note examines the legal hurdles surrounding the novel “citizen deputy” statute—including its structure, the attendant legal doctrines, and its broader implications—using SB 8 as a test case for the analysis. While SB 8’s prohibition is no longer unconstitutional, the divisive history of the abortion debate that gave rise to the structure sheds light on the reasons why states may be motivated to infringe on constitutional rights and whether such efforts can succeed in practice. SB 8 is thus a useful test case to examine the structure and its potential for reuse. For purposes of this analysis, this Note …

The Right To Train: A Pillar Of The Second Amendment, Joseph G.S. Greenlee

William & Mary Bill of Rights Journal

Since the Supreme Court confirmed that the Second Amendment protects “the individual right to possess and carry weapons” in District of Columbia v. Heller, lower courts have been grappling with whether there is also a right to train with those weapons. Courts have considered whether training is a protected activity, whether it is a “core” right, and whether its protection is limited to gaining the minimum competency needed for self-defense.

[...]

No court yet has explored the legal history of the right to train, nor has any article. This Article presents the first in-depth historical exploration of the right. …

Balancing Liberty And Security: A Proposal For Amplified Procedural Due Process Protections In The U.S. Sanctions Regime, Allison Lofgren

William & Mary Bill of Rights Journal

This Note will concentrate on procedural due process concerns stemming from the imposition of terrorist financing sanctions, and it will primarily discuss designated U.S. persons. This is a narrow focus, but it can be viewed as a microcosm for due process issues present throughout the broader IEEPA [International Emergency Economic Powers Act] regime. Ultimately, this Note will conclude that OFAC [Office of Foreign Assets Control]'s terrorist financing designation process inadequately protects the procedural due process rights of targets, and it will advocate for the implementation of additional procedural protections that balance undeniable constitutional requirements with the critical concern of national …

Thinking Outside The Box: Preimplantation Genetic Diagnosis, In Vitro Fertilization, And Disability Screening In The Wake Of Box V. Planned Parenthood, Christian J. Sorensen

William & Mary Bill of Rights Journal

A circuit split has recently emerged regarding the constitutionality of state laws banning trait-selective abortions, i.e., abortions based on fetal characteristics like disability. Much of the dialogue surrounding trait selection has revolved around whether such abortions are eugenic in nature and whether they could be regulated differently than other forms of abortion—under either Roe and Casey or the post- Roe regime ushered in by Dobbs. However, the same concerns underlying this debate over eugenic abortions apply with equal force to preimplantation genetic diagnosis (PGD) coupled with in vitro fertilization. Because PGD seems certain to be the next battlefield in …

The Case For Local Data Sharing Ordinances, Beatriz Botero Arcila

William & Mary Bill of Rights Journal

Cities in the United States have started to enact data sharing rules and programs to access some of the data that technology companies operating under their jurisdiction— like short-term rental or ride hailing companies—collect. This information allows cities to adapt to the challenges and benefits of the digital information economy. It allows them to understand what the impact of these technology companies is on congestion, the housing market, the local job market, and even the use of public spaces. It also empowers cities to act accordingly by, for example, setting vehicle caps or mandating a tailored minimum pay for gig …

The First Amendment Weaponized: When Guns Become Public Discourse, Danny Li

William & Mary Bill of Rights Journal

This Article discusses First Amendment challenges asserted against gun control measures—inside and outside our courts. It explains at length why existing doctrinal approaches to resolving these challenges fail, providing an alternative account of why the First Amendment should not be construed liberally to protect the open carry of firearms. As guns in public spaces and protests become commonplace, we can expect not only continual First Amendment challenges to gun control measures, but also the growing prevalence of First Amendment claims asserted in the public by advocates and gun owners to justify open carry—and the forging of new constitutional meanings and …

Forgetting Marbury's Lesson: Qualified Immunity's Original Purpose, Tobias Kuehne

William & Mary Bill of Rights Journal

Substantial parts of the history of qualified immunity remain unwritten. While qualified immunity is hotly debated among scholars and practitioners, we know little about qualified immunity’s origins, and the institutional pressures that shaped its historical path. This Article provides that missing history. It begins by observing the striking parallels between Pierson v. Ray—qualified immunity’s origin case—and Marbury v. Madison. Both were suits against government officials to vindicate individual rights granted by a congressional statute, and both cases arose while the Court was under intense political pressure. In each case, the Supreme Court struck a surprising middle ground: It …

Originalism's Implementation Problem, Michael L. Smith, Alexander S. Hiland

William & Mary Bill of Rights Journal

Despite the vast body of theoretical work produced by originalist scholars, this literature fails to address how practicing judges and attorneys should apply originalist theories. All too often, academic originalists appear to write for an audience of other originalist scholars. This results in lengthy, technical, and heavily theoretical discussions. The question of how courts and judges are to apply these increasingly technical and theoretical originalist methods is left by the wayside. All too often, judges and attorneys cherry-pick from this body of scholarship to create a veneer of academic legitimacy for their own goal-oriented arguments.

We do not seek to …

From Negative To Positive Algorithm Rights, Cary Coglianese, Kat Hefter

William & Mary Bill of Rights Journal

We consider this issue here and suggest that the current calls for a negative right to be free from AI could very well transform over time into positive claims that demand the use of algorithmic tools by government officials. In Part I, we begin by sketching the current landscape surrounding the adoption of AI by government. That landscape is characterized by strong activist and scholarly voices expressing a pronounced aversion to the use of digital algorithms—and taking a decidedly negative rights tone. In Part II, we show that, although aversion to complex technology might be understandable, that aversion is neither …

Limited Protection: The Impact Of Illegal Entry On Due Process Rights In Expedited Removal Proceedings, Sun Shen

William & Mary Bill of Rights Journal

[...] This Note argues that illegal entry often limits the scope of asylum seekers’ due process rights in court and negatively impacts the asylum process in a way that runs afoul with the spirit of due process and fairness. Asylum eligibility should not hinge on whether entry is legal, but whether applicants are able to meet the evidentiary burden. Conditioning asylum seekers’ procedural due process rights on the legality of entry creates arbitrary asylum results and carries high risks of sending back asylum seekers to danger, simply because they were not able to obtain valid travel documents from the governments …

Maybe We Don't Need To Find Waldo After All: Why Preventing Voter Fraud Is Not A Compelling Interest, Brandon T. Goldstein

William & Mary Bill of Rights Journal

This Note takes the position, counter to established jurisprudence, that the prevention of voter fraud is not a compelling state interest that can independently justify restrictions on the right to vote. It will seek to do so through two mechanisms. First, it will argue that the right to vote is unjustifiably treated differently than other rights by courts, using a comparison to the Second Amendment right to bear arms. Second, it will argue that current jurisprudence holding the prevention of voter fraud to be a compelling interest misunderstands the inherent means-ends distinction in voting rights standards. The prevention of voter …

The Price Of Democracy: Evaluating The Excessing Fines Clause In Light Of Florida Felon Disenfranchisement, Raven Peters

William & Mary Bill of Rights Journal

This Note aims to show how the current test of proportionality is insufficient in combatting excessive fines, especially considering the racist and discriminatory practices of felon disenfranchisement. In Part I, this Note evaluates the background of the Eighth Amendment’s Excessive Fines Clause and its recent incorporation against the states. Part II will provide insight into the history of felon disenfranchisement in Florida and the fight for voter restoration through the passage of Florida Amendment 4. This section will then tell of the subsequent implementation of Florida Statutes section 98.0751 requiring ex-felons to pay all fines and fees associated with their …

Hope Dies Last: The Progressive Potential And Regressive Reality Of The Antibalkanization Approach To Racial Equality, David Simson

William & Mary Bill of Rights Journal

This Article relies on Critical Race Theory concepts and social science research to make an important and timely contribution to a debate in law and public policy that is both long-standing and of immense current importance: What is the relationship between social cohesion on the one hand, and racial equality progress on the other?

[...]

Over the last four decades, the Supreme Court’s equal protection jurisprudence on governmental race-consciousness has answered with an “antibalkanization approach” which prioritizes social cohesion. Indeed, this approach views social cohesion as a prerequisite for racial equality progress. It considers racial hostility and resentment among White …

From Private Prejudice To Public Policy: How Religious Conservatives Use Liberalism To Control Women's Bodies -- The United States And Israel In Comparative Perspective, Gila Stopler

William & Mary Bill of Rights Journal

The Article uses the feminist critique of the patriarchal nature of religion and liberalism, the feminist critique of flaws in political liberalism, and a socio-political analysis of the power of religious conservative groups in the United States and Israel to claim that religious conservatives use the patriarchal nature of liberalism, its inherent flaws, and conservative political power to turn private religious prejudice into public policy. Analyzing the constitutional and legal status of religion in the United States and the recent dramatic changes it has undergone, the Article shows that contrary to popular belief, and due to the aforementioned factors, the …

The Coddling Of The American Worker's Mind: The Anti-Free Speech Nature Of Popular Labor Law Reforms, Daniel V. Johns

William & Mary Bill of Rights Journal

As the nation enters an era in which a new presidential administration will likely push such labor law reforms, it is worth considering whether transparently anti-free speech reform measures make sense for the future of labor policy and law. This Article argues that they do not. Because employee free choice is furthered, not diminished, by hearing both sides of an issue, American workers should have the opportunity to hear and evaluate employer speech in the course of union campaigns. Only then can employees make an informed decision about their workplace future. In the end, freedom of speech furthers employee freedom …

All The Sovereign's Agents: The Constitutional Credentials Of Administration, Kate Jackson

William & Mary Bill of Rights Journal

[...] This Article suggests that agency institutions should be measured against the notion that popular sovereignty demands not consensus and consent, but instead institutions that permit citizens to understand themselves as coequal participants in the collective decision-making process.

Part I situates administrative agencies in an understanding of liberal democratic constitutionalism that eschews outmoded notions of popular sovereignty and natural law. It will then explain how adequately conceived notions of the separation of powers and the rule of law cannot serve as indefeasible objections to administration. Part II makes a positive case for agency authority by drawing from the insights gained …