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No Arbitrary Power: An Originalist Theory Of The Due Process Of Law, Randy E. Barnett, Evan D. Bernick Apr 2019

No Arbitrary Power: An Originalist Theory Of The Due Process Of Law, Randy E. Barnett, Evan D. Bernick

William & Mary Law Review

“Due process of law” is arguably the most controversial and frequently litigated phrase in the Constitution of the United States. Although the dominant originalist view has long been that the Fifth and Fourteenth Amendment’s Due Process of Law Clauses are solely “process” guarantees that do not constrain the content or “substance” of legislation at all, originalist scholars have in recent years made fresh inquiries into the historical evidence and concluded that there is a weighty case for some form of substantive due process. In this Article, we review and critique those findings, employing our theory of good-faith originalist interpretation ...


Dear Colleague: Due Process Is Not Under Attack At Colleges And Universities, As Shown Through A Comparative Analysis Of College Disciplinary Committees And American Juries, Mara Emory Shingleton Oct 2018

Dear Colleague: Due Process Is Not Under Attack At Colleges And Universities, As Shown Through A Comparative Analysis Of College Disciplinary Committees And American Juries, Mara Emory Shingleton

William & Mary Bill of Rights Journal

No abstract provided.


Highway Robbery: Due Process, Equal Protection, And Punishing Poverty With Driver’S License Suspensions, Thomas Capretta May 2018

Highway Robbery: Due Process, Equal Protection, And Punishing Poverty With Driver’S License Suspensions, Thomas Capretta

William & Mary Bill of Rights Journal

No abstract provided.


Even When You Win, You Lose: Executive Order 13769 & The Depressing State Of Procedural Due Process In The Context Of Immigration, Amy L. Moore Oct 2017

Even When You Win, You Lose: Executive Order 13769 & The Depressing State Of Procedural Due Process In The Context Of Immigration, Amy L. Moore

William & Mary Bill of Rights Journal

No abstract provided.


State And Local Procedural Injustices In Environmental Regulation: The Experiences Of Tallevast, Florida, Brett M. Paben Feb 2017

State And Local Procedural Injustices In Environmental Regulation: The Experiences Of Tallevast, Florida, Brett M. Paben

William & Mary Environmental Law and Policy Review

Government decisions made at the local and state level are those that most often directly affect communities. Participatory and procedural protections under state and local, rather than federal law, therefore, largely control the ability of grassroots environmental justice advocates to shape government decisions important to their communities. Thus, significant disparities in the standards of procedural justice differ not only by which state an environmental justice community happens to be located in, but also by the type of local government with authority over that community. Frequently, this diminishes the empowerment efforts of communities found in unincorporated areas. The community found in ...


Reliance On Nonenforcement, Zachary S. Price Feb 2017

Reliance On Nonenforcement, Zachary S. Price

William & Mary Law Review

Can regulated parties ever rely on official assurances that the law will not apply to them? Recent marijuana and immigration nonenforcement policies have presented this question in acute form. Both policies effectively invited large numbers of legally unsophisticated people to undertake significant legal risks in reliance on formally nonbinding governmental assurances. The same question also arises across a range of civil, criminal, and administrative contexts, and it seems likely to recur in the future so long as partisan polarization and sharp disagreement over the merits of existing law persist.

This Article addresses when, if ever, constitutional due process principles may ...


The Lawfulness Of The Same-Sex Marriage Decisions: Charles Black On Obergefell, Toni M. Massaro Oct 2016

The Lawfulness Of The Same-Sex Marriage Decisions: Charles Black On Obergefell, Toni M. Massaro

William & Mary Bill of Rights Journal

No abstract provided.


Due Process As Choice Of Law: A Study In The History Of A Judicial Doctrine, Matthew J. Steilen Jun 2016

Due Process As Choice Of Law: A Study In The History Of A Judicial Doctrine, Matthew J. Steilen

William & Mary Bill of Rights Journal

This Article argues that procedural due process can be understood as a choice of-law doctrine. Many procedural due process cases require courts to choose between a procedural regime characteristic of the common law—personal notice, oral hearing, neutral judge, and jury trial—and summary procedures employed in administrative agencies.

This way of thinking about procedural due process is at odds with the current balancing test associated with the Supreme Court’s opinion in Mathews v. Eldridge. This Article aims to show, however, that it is consistent with case law over a much longer period, indeed, most of American history. It ...


Premodern Constitutionalism, Martin H. Redish, Matthew Heins Apr 2016

Premodern Constitutionalism, Martin H. Redish, Matthew Heins

William & Mary Law Review

The traditional concept of American constitutionalism has long been a basic assumption not subject to tremendous examination. For generations, scholars have understood our Constitution to be the byproduct of a revolutionary war fought for representation and a foundinggeneration concernedwith preventingtyranny in any form. The traditional understandingof American constitutionalism thus consists of two elements: the underlyingprinciple of skeptical optimism, which can be found in the historical context within which the Framers gathered to draft the Constitution, and the political apparatus effectuating that idea— countermajoritarian constraint set against majoritarian power— which reveals itself through reverse engineeringfrom the structural Constitution.

Over the last ...


Judicial Power To Regulate Plea Bargaining, Darryl K. Brown Mar 2016

Judicial Power To Regulate Plea Bargaining, Darryl K. Brown

William & Mary Law Review

Plea bargaining in the United States is in critical respects unregulated, and a key reason is the marginal role to which judges have been relegated. In the wake of Santobello v. New York (1971), lower courts crafted Due Process doctrines through which they supervised the fairness of some aspects of the plea bargaining process. Within a decade, however, U.S. Supreme Court decisions began to shut down any constitutional basis for judicial supervision of plea negotiations or agreements. Those decisions rested primarily on two claims: separation of powers and the practical costs of regulating plea bargaining in busy criminal justice ...


(Same) Sex, Lies, And Democracy: Tradition, Religion, And Substantive Due Process (With An Emphasis On Obergefell V. Hodges), Stephen M. Feldman Dec 2015

(Same) Sex, Lies, And Democracy: Tradition, Religion, And Substantive Due Process (With An Emphasis On Obergefell V. Hodges), Stephen M. Feldman

William & Mary Bill of Rights Journal

Substantive due process issues implicitly concern voice. Whose voice will be heard? Although such issues often remain submerged, the Justices occasionally translate them into disputes over democratic participation and power. The Supreme Court’s most important substantive due process decision in years, Obergefell v. Hodges, entailed such a battle over democracy. The multiple dissenting opinions insisted that the decision demeaned the opponents of same-sex marriage, many of whom were inspired by traditional values and religious convictions. The majority explicitly disagreed, reasoning that the case resolved the rights of same-sex couples to marry and did not diminish the opponents’ voices. The ...


Historically Unappealing: Boumediene V. Bush, Appellate Avoidance Mechanisms, And Black Holes Extending Beyond Guantanamo Bay, Dennis Schmelzer May 2015

Historically Unappealing: Boumediene V. Bush, Appellate Avoidance Mechanisms, And Black Holes Extending Beyond Guantanamo Bay, Dennis Schmelzer

William & Mary Bill of Rights Journal

No abstract provided.


Diagnosed With Time Is Money: Arbitrary Medicare Provisions Differentiating Observation Services From Inpatient Admissions Violate Beneficiaries’ Due Process Rights, Stephanie Masaba May 2015

Diagnosed With Time Is Money: Arbitrary Medicare Provisions Differentiating Observation Services From Inpatient Admissions Violate Beneficiaries’ Due Process Rights, Stephanie Masaba

William & Mary Bill of Rights Journal

No abstract provided.


The Real Constitutional Problem With State Judicial Selection: Due Process, Judicial Retention, And The Dangers Of Popular Constitutionalism, Martin H. Redish, Jennifer Aronoff Oct 2014

The Real Constitutional Problem With State Judicial Selection: Due Process, Judicial Retention, And The Dangers Of Popular Constitutionalism, Martin H. Redish, Jennifer Aronoff

William & Mary Law Review

In Caperton v. A.T. Massey Coal Co., decided in 2009, the Supreme Court held for the first time that conduct related to a judicial election campaign violated a litigant’s right to procedural due process because the opposing litigant had contributed an inordinate amount of money to the campaign of one of the justices ruling on the case. The due process danger recognized in Caperton rests on a fear of retrospective gratitude—that is, the fear that the Justice would decide his contributor’s case differently because he was grateful for the litigant’s generous support. The Court’s ...


Is Guilt Dispositive? Federal Habeas After Martinez, Justin F. Marceau Jun 2014

Is Guilt Dispositive? Federal Habeas After Martinez, Justin F. Marceau

William & Mary Law Review

Federal habeas review of criminal convictions is not supposed to be a second opportunity to adjudge guilt. Oliver Wendell Holmes, among others, has said that the sole question on federal habeas is whether the prisoner’s constitutional rights were violated. By the early 1970s, however, scholars criticized this rights-based view of habeas and sounded the alarm that postconviction review had become too far removed from questions of innocence. Most famously, in 1970 Judge Friendly criticized the breadth of habeas corpus by posing a single question: Is innocence irrelevant? In his view habeas review that focused exclusively on questions of rights ...


Specificity Or Dismissal: The Improper Extension Of Rule 9(B) To Negligent Misrepresentation As A Deprivation Of Plaintiffs’ Procedural Due Process Rights, Julie A. Cook May 2014

Specificity Or Dismissal: The Improper Extension Of Rule 9(B) To Negligent Misrepresentation As A Deprivation Of Plaintiffs’ Procedural Due Process Rights, Julie A. Cook

William & Mary Bill of Rights Journal

No abstract provided.


Professional Licenses And Substantive Due Process: Can States Compel Physicians To Provide Their Services, Carolyn R. Cody Mar 2014

Professional Licenses And Substantive Due Process: Can States Compel Physicians To Provide Their Services, Carolyn R. Cody

William & Mary Bill of Rights Journal

No abstract provided.


Deadly Drones, Due Process, And The Fourth Amendment, William Funk Dec 2013

Deadly Drones, Due Process, And The Fourth Amendment, William Funk

William & Mary Bill of Rights Journal

No abstract provided.


An Essay On Due Process And The Endowment Effect, Paul R. Verkuil Dec 2013

An Essay On Due Process And The Endowment Effect, Paul R. Verkuil

William & Mary Bill of Rights Journal

No abstract provided.


Knowledge Is Power: The Fundamental Right To Record Present Observations In Public, Travis Gunn Mar 2013

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 Feb 2013

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 Feb 2013

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 ...


"Give Me A Few More Minutes!": How Virginia Violates Due Process By Hitting The Snooze Button On A Timely Declaration Of Death, Samantha Lauren Soller Mar 2012

"Give Me A Few More Minutes!": How Virginia Violates Due Process By Hitting The Snooze Button On A Timely Declaration Of Death, Samantha Lauren Soller

William & Mary Bill of Rights Journal

No abstract provided.


Sacrifice And Sacred Honor: Why The Constitution Is A "Suicide Pact", Peter Brandon Bayer Dec 2011

Sacrifice And Sacred Honor: Why The Constitution Is A "Suicide Pact", Peter Brandon Bayer

William & Mary Bill of Rights Journal

Most legal scholars and elected officials embrace the popular cliché that “the Constitution is not a suicide pact.” Typically, those commentators extol the “Constitution of necessity,” the supposition that Government, essentially the Executive, may take any action—may abridge or deny any fundamental right—to alleviate a sufficiently serious national security threat. The “Constitution of necessity” is wrong. This Article explains that strict devotion to the “fundamental fairness” principles of the Constitution’s Due Process Clauses is America’s utmost legal and moral duty, surpassing all other considerations, even safety, security and survival.

The analysis begins with the most basic ...


Shadowing The Flag: Extending The Habeas Writ Beyond Guantanamo, Dawinder S. Sidhu Oct 2011

Shadowing The Flag: Extending The Habeas Writ Beyond Guantanamo, Dawinder S. Sidhu

William & Mary Bill of Rights Journal

The writ of habeas corpus activates courts’ duty to check arbitrary or unlawful restraints by the Executive on individual liberty. In times of war, courts have been compelled to determine whether the writ is available to individuals held by the Executive outside of the territorial boundaries of the United States. In Johnson v. Eisentrager, in which World War II detainees were held in Germany, the Supreme Court answered in the negative, while in Boumediene v. Bush, involving post–9/11 detainees housedat Guantánamo, the Court reached the opposite conclusion. Operating within these two guideposts, the U.S. Court of Appeals ...


A Child-Centered Response To The Elkins Family Law Task Force, Amy M. Pellman, Robert N. Jacobs, Dara K. Reiner Oct 2011

A Child-Centered Response To The Elkins Family Law Task Force, Amy M. Pellman, Robert N. Jacobs, Dara K. Reiner

William & Mary Bill of Rights Journal

In Elkins v. Superior Court, 163 P.3d 160 (Cal. 2007), California’s Supreme Court asked the Judicial Council to form a task force to make recommendations to increase “access to justice” in family court, because it was concerned about rules, policies, and procedures that put self-represented litigants at an unfair disadvantage in parentageand dissolution cases.

Neither the task force’s report in 2010 nor the legislation that the report inspired the same year addresses children’s due process rights, even though children ordinarily have no access to justice. This Article shows that due process sometimes requires the trial court ...


Finding Equilibrium: Exploring Due Process Violations In The Whistleblower Provisions Of The Fraud Enforecement And Recovery Act Of 2009, Laura Hough May 2011

Finding Equilibrium: Exploring Due Process Violations In The Whistleblower Provisions Of The Fraud Enforecement And Recovery Act Of 2009, Laura Hough

William & Mary Bill of Rights Journal

No abstract provided.


Dodging A Bullet: Mcdonald V. City Of Chicago And The Limits Of Progessive Originalism, Dale E. Ho Dec 2010

Dodging A Bullet: Mcdonald V. City Of Chicago And The Limits Of Progessive Originalism, Dale E. Ho

William & Mary Bill of Rights Journal

The Supreme Court’s decision in last term’s gun rights case, McDonald v. City of Chicago, punctured the conventional wisdom after District of Columbia v. Heller that “we are all originalists now.” Surprisingly, many progressive academics were disappointed. For “progressive originalists,” McDonald was a missed opportunity to overrule the Slaughter-House Cases and to revitalize the Privileges or Immunities Clause of the Fourteenth Amendment. In their view, such a ruling could have realigned progressive constitutional achievements with originalism and relieved progressives of the albatross of substantive due process, while also unlocking long-dormant constitutional text to serve as the source of ...


The Texas Mis-Step: Why The Largest Child Removal In Modern U.S. History Failed, Jessica Dixon Weaver Apr 2010

The Texas Mis-Step: Why The Largest Child Removal In Modern U.S. History Failed, Jessica Dixon Weaver

William & Mary Journal of Race, Gender, and Social Justice

This Article sets forth the historical and legal reasons as to how the State of Texas botched the removal of 439 children from the Fundamentalist Church of Jesus Christ of Latter-Day Saints parents residing in Eldorado, Texas. The Department of Family and Protective Services in Texas overreached its authority by treating this case like a class-action removal based on an impermissible legal argument, rather than focusing on the facts and circumstances that could have been substantiated for a select group of children at risk. This impermissible legal argument regarding the “pervasive belief system” of a polygamist sect that allowed minor ...


Know Your Limit: How Legislatures Have Gone Overboard With Per Se Drunk Driving Laws And How Men Pay The Price, Andrew Gore Feb 2010

Know Your Limit: How Legislatures Have Gone Overboard With Per Se Drunk Driving Laws And How Men Pay The Price, Andrew Gore

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.