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College of William & Mary Law School

William & Mary Bill of Rights Journal

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Full-Text Articles in Law

Prior Restraint In The Digital Age, Ariel L. Bendor, Michal Tamir May 2019

Prior Restraint In The Digital Age, Ariel L. Bendor, Michal Tamir

William & Mary Bill of Rights Journal

In this Article we argue that the digital revolution requires a reshaping of the Doctrine of Prior Restraint, which prohibits the implementation of any regulations that prevent the publication of speech prior to its distribution. We describe the prohibition on prior restraint of speech, its rationales and its exceptions; present the characteristics of the media in the digital age; suggest that the traditional design of the Doctrine does not fit these characteristics; and describe the reshaping that we propose in order to adapt the Doctrine to the age of the Internet and social networking.


In Defense Of Hybrid Representation: The Sword To Wield And The Shield To Protect, Kelly Rondinelli May 2019

In Defense Of Hybrid Representation: The Sword To Wield And The Shield To Protect, Kelly Rondinelli

William & Mary Bill of Rights Journal

No abstract provided.


The Popular Constitutional Canon, Tom Donnelly May 2019

The Popular Constitutional Canon, Tom Donnelly

William & Mary Bill of Rights Journal

Popular constitutionalism scholarship has often left out the American people. Sure, ordinary citizens make cameo appearances—often through the actions of elected officials and elite movement leaders. However, focusing on high politics among elite actors—even if those actors are not judges—simply is not enough. If popular constitutional views do, indeed, matter, then we can expect constitutional partisans to try to manipulate the processes through which these views emerge. Some constitutional scholars have made a start, reflecting on the importance of the constitutional canon. However, these scholars focus mostly on the legal canon and often ignore its popular analog ...


A Century In The Making: The Glorious Revolution, The American Revolution, And The Origins Of The U.S. Constitution’S Eighth Amendment, John D. Bessler May 2019

A Century In The Making: The Glorious Revolution, The American Revolution, And The Origins Of The U.S. Constitution’S Eighth Amendment, John D. Bessler

William & Mary Bill of Rights Journal

The sixteen words in the U.S. Constitution’s Eighth Amendment have their roots in England’s Glorious Revolution of 1688–89. This Article traces the historical events that initially gave rise to the prohibitions against excessive bail, excessive fines, and cruel and unusual punishments. Those three proscriptions can be found in the English Declaration of Rights and in its statutory counterpart, the English Bill of Rights. In particular, the Article describes the legal cases and draconian punishments during the Stuart dynasty that led English and Scottish parliamentarians to insist on protections against cruelty and excessive governmental actions. In describing ...


Servitude And Captivity In The Common Law Of Master-Servant: Judicial Interpretations Of The Thirteenth Amendment’S Labor Vision Immediately After Its Enactment, Lea Vandervelde May 2019

Servitude And Captivity In The Common Law Of Master-Servant: Judicial Interpretations Of The Thirteenth Amendment’S Labor Vision Immediately After Its Enactment, Lea Vandervelde

William & Mary Bill of Rights Journal

This Article first takes a closer look at Blackstone’s chapter on master and servant. Second, it examines the anti-subordination agenda of the Reconstruction Congress, which abolished involuntary servitude and engaged in structuring a free labor system—a republican system of labor—to replace the slave labor system and to bring the freedmen into parity with their former masters. Third, this Article looks at how the courts interpreted the Thirteenth Amendment’s scope in the years immediately after its enactment. This Part demonstrates that the federal courts effectively closed off the path to develop the Thirteenth Amendment as an economic ...


Filling The Ninth Circuit Vacancies, Carl Tobias May 2019

Filling The Ninth Circuit Vacancies, Carl Tobias

William & Mary Bill of Rights Journal

Upon Republican President Donald Trump’s inauguration, the United States Court of Appeals for the Ninth Circuit experienced some pressing appellate vacancies, which the Administrative Office of the United States Courts (AO) carefully identified as “judicial emergencies” because the tribunal resolves a massive docket. Last year’s death of the iconic liberal champion Stephen Reinhardt and the late 2017 departure of libertarian former Chief Judge Alex Kozinski—who both assumed pivotal circuit leadership roles over numerous years—and a few of their colleagues’ decision to leave active court service thereafter, mean the tribunal presently confronts four judicial emergencies and resolves ...


Broken Platforms, Broken Communities? Free Speech On Campus, Stephen M. Feldman May 2019

Broken Platforms, Broken Communities? Free Speech On Campus, Stephen M. Feldman

William & Mary Bill of Rights Journal

Free speech disputes have broken out on numerous college and university campuses. In several incidents, protesters have attempted to block the presentations of well-known and controversial speakers who threaten the communal status of societal outsiders. These events have sparked not only widespread media coverage but also the publication of multiple scholarly books and articles. None of this scholarship, however, has recognized that the interrelated histories of free expression and democracy can shed considerable light on these matters. This Article takes on that challenge. Specifically, this Article explores the ramifications of the historical interrelationship between free expression and democracy for campus ...


Universal Human Rights And Constitutional Change, David Sloss, Wayne Sandholtz May 2019

Universal Human Rights And Constitutional Change, David Sloss, Wayne Sandholtz

William & Mary Bill of Rights Journal

Scholars have written volumes about the dramatic constitutional changes that occurred in the United States in the decades after World War II. Several leading scholarly accounts adopt an internal perspective, focusing primarily on domestic factors that drove constitutional change. Other scholars adopt a more transnational perspective, linking domestic constitutional change in the United States to Cold War politics, or to the rise of totalitarianism. This Article builds on the work of scholars like Mary Dudziak and Richard Primus who have emphasized the transnational factors that contributed to constitutional change in the United States. However, our account differs from both Dudziak ...


Forced Marriage: Terminological Coherence And Dissonance In International Criminal Law, Valerie Oosterveld May 2019

Forced Marriage: Terminological Coherence And Dissonance In International Criminal Law, Valerie Oosterveld

William & Mary Bill of Rights Journal

No abstract provided.


Time For A Change In Eminent Domain: A “Dirt Farmer’S” Story Shows Why Just Compensation Should Include Lost Profits, Edward Walton May 2019

Time For A Change In Eminent Domain: A “Dirt Farmer’S” Story Shows Why Just Compensation Should Include Lost Profits, Edward Walton

William & Mary Bill of Rights Journal

No abstract provided.


Understanding Crime Gravity: Exploring The Views Of International Criminal Law Experts, Stuart Ford Mar 2019

Understanding Crime Gravity: Exploring The Views Of International Criminal Law Experts, Stuart Ford

William & Mary Bill of Rights Journal

No abstract provided.


The Bemba Appeals Chamber Judgment: Impunity For Sexual And Gender-Based Crimes?, Susana Sácouto, Patricia Viseur Sellers Mar 2019

The Bemba Appeals Chamber Judgment: Impunity For Sexual And Gender-Based Crimes?, Susana Sácouto, Patricia Viseur Sellers

William & Mary Bill of Rights Journal

No abstract provided.


Human Rights In International Criminal Proceedings—The Impact Of The Judgment Of The Kosovo Specialist Chambers Of 26 April 2017, Göran Sluiter Mar 2019

Human Rights In International Criminal Proceedings—The Impact Of The Judgment Of The Kosovo Specialist Chambers Of 26 April 2017, Göran Sluiter

William & Mary Bill of Rights Journal

By their very nature, international criminal tribunals will in their operation impact individual rights, such as the right to liberty and the right to a fair trial. Without a constitution and without a history in developing due process norms, international criminal tribunals have to provide for instant incorporation of human rights in their respective criminal proceedings.

However, the circumstances under which international criminal tribunals are established are often complex, while at the same time their creation is considered to be a matter of urgency. As a result, there may not always be sufficient attention to human rights law’s position ...


Common Law Evidence And The Common Law Of Human Rights: Towards A Harmonic Convergence?, John D. Jackson Mar 2019

Common Law Evidence And The Common Law Of Human Rights: Towards A Harmonic Convergence?, John D. Jackson

William & Mary Bill of Rights Journal

This Article considers the impact which European Human Rights Law has made upon the common law rules of evidence with reference to the approach the European Court of Human Rights (ECtHR) has adopted towards exclusionary rules of evidence. Particular attention will be given to rules that have been developed by the ECtHR in relation to the right to counsel during police questioning (the so-called “Salduz” doctrine) and the right to examine witnesses (the so-called “sole or decisive” evidence rule). The Article argues that the effect of these rules has encouraged common law judges to engage more holistically with the effect ...


Charter Cities, Lan Cao Mar 2019

Charter Cities, Lan Cao

William & Mary Bill of Rights Journal

No abstract provided.


State Empowerment And The Compact Clause, James F. Blumstein, Thomas J. Cheeseman Mar 2019

State Empowerment And The Compact Clause, James F. Blumstein, Thomas J. Cheeseman

William & Mary Bill of Rights Journal

No abstract provided.


Merging Offensive-Speech Cases With Viewpoint-Discrimination Principles: The Immediate Impact Of Matal V. Tam On Two Strands Of First Amendment Jurisprudence, Clay Calvert Mar 2019

Merging Offensive-Speech Cases With Viewpoint-Discrimination Principles: The Immediate Impact Of Matal V. Tam On Two Strands Of First Amendment Jurisprudence, Clay Calvert

William & Mary Bill of Rights Journal

This Article examines flaws with the U.S. Supreme Court’s 2017 decision in Matal v. Tam that equated giving offense with viewpoint discrimination. Already, the Court’s language in Tam that “giving offense is a viewpoint” is being cited by multiple lower courts. This Article argues, however, that giving offense is not synonymous with viewpoint discrimination. This Article contends that the Court in Tam conflated two distinct strands of First Amendment jurisprudence—namely, its offensive-speech cases with principles against viewpoint discrimination. The Article proposes two possible paths forward to help courts better clarify when a case such as Tam ...


Puerto Rico, Inc.: Implicit Incorporation And Puerto Rico’S Right To Vote For Presidential Electors, Aaron Barden Mar 2019

Puerto Rico, Inc.: Implicit Incorporation And Puerto Rico’S Right To Vote For Presidential Electors, Aaron Barden

William & Mary Bill of Rights Journal

No abstract provided.


A Cleaner, Crispr Constitution: Germline Editing And Fundamental Rights, Andrew Cunningham Mar 2019

A Cleaner, Crispr Constitution: Germline Editing And Fundamental Rights, Andrew Cunningham

William & Mary Bill of Rights Journal

No abstract provided.


Epilogue: From Too Tall To Trim And Small, Mark A. Drumbl Mar 2019

Epilogue: From Too Tall To Trim And Small, Mark A. Drumbl

William & Mary Bill of Rights Journal

No abstract provided.


The Father Of Modern Constitutional Liberalism, John Lawrence Hill Dec 2018

The Father Of Modern Constitutional Liberalism, John Lawrence Hill

William & Mary Bill of Rights Journal

No abstract provided.


The Esquire Case: A Lost Free Speech Landmark, Samantha Barbas Dec 2018

The Esquire Case: A Lost Free Speech Landmark, Samantha Barbas

William & Mary Bill of Rights Journal

No abstract provided.


Civil Rights Notes: American Indians And Banishment, Jury Trials, And The Doctrine Of Lenity, Grant Christensen Dec 2018

Civil Rights Notes: American Indians And Banishment, Jury Trials, And The Doctrine Of Lenity, Grant Christensen

William & Mary Bill of Rights Journal

No abstract provided.


Other Lands And Other Skies: Birthright Citizenship And Self-Government In Unincorporated Territories, John Vlahoplus Dec 2018

Other Lands And Other Skies: Birthright Citizenship And Self-Government In Unincorporated Territories, John Vlahoplus

William & Mary Bill of Rights Journal

No abstract provided.


A Reparative Justice Approach To Assessing Ancestral Classifications Aimed At Colonization’S Harms, Susan K. Serrano Dec 2018

A Reparative Justice Approach To Assessing Ancestral Classifications Aimed At Colonization’S Harms, Susan K. Serrano

William & Mary Bill of Rights Journal

No abstract provided.


The Superior Solution To The “Denominator Problem” — Comparing The Majority And Dissent’S Property Benchmark Tests In Murr V. Wisconsin With A Focus On Property Owners’ Reasonable Expectations, Rosemary K. Mcguirk Dec 2018

The Superior Solution To The “Denominator Problem” — Comparing The Majority And Dissent’S Property Benchmark Tests In Murr V. Wisconsin With A Focus On Property Owners’ Reasonable Expectations, Rosemary K. Mcguirk

William & Mary Bill of Rights Journal

No abstract provided.


Who’S Your Sovereign?: The Standing Doctrine Of Parens Patriae & State Lawsuits Defending Sanctuary Policies, Lexi Zerrillo Dec 2018

Who’S Your Sovereign?: The Standing Doctrine Of Parens Patriae & State Lawsuits Defending Sanctuary Policies, Lexi Zerrillo

William & Mary Bill of Rights Journal

No abstract provided.


Silencing State Courts, Jeffrey Steven Gordon Oct 2018

Silencing State Courts, Jeffrey Steven Gordon

William & Mary Bill of Rights Journal

In state courts across the Nation, an absolutist conception of the First Amendment is preempting common law speech torts. From intentional infliction of emotional distress and intrusion upon seclusion, to intentional interference with contractual relations and negligent infliction of emotional distress, state courts are dismissing speech tort claims on the pleadings because of the broad First Amendment defense recognized by Snyder v. Phelps in 2011. This Article argues, contrary to the scholarly consensus, that Snyder was a categorical departure from the methodology adopted by New York Times Co. v. Sullivan, the landmark 1964 case that first applied the First Amendment ...


The New Jim Crow’S Equal Protection Potential, Katherine Macfarlane Oct 2018

The New Jim Crow’S Equal Protection Potential, Katherine Macfarlane

William & Mary Bill of Rights Journal

In 1954, the Supreme Court’s Brown v. Board of Education opinion relied on social science research to overturn Plessy v. Ferguson’s separate but equal doctrine. Since Brown, social science research has been considered by the Court in cases involving equal protection challenges to grand jury selection, death penalty sentences, and affirmative action. In 2016, Justice Sotomayor cited an influential piece of social science research, Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness, in her powerful Utah v. Strieff dissent. Sotomayor contended that the Court’s holding overlooked the unequal racial impact of ...


A Historical Examination Of The Constitutionality Of The Federal Estate Tax, Henry Lowenstein, Kathryn Kisska-Schulze Oct 2018

A Historical Examination Of The Constitutionality Of The Federal Estate Tax, Henry Lowenstein, Kathryn Kisska-Schulze

William & Mary Bill of Rights Journal

No abstract provided.