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Full-Text Articles in Law

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 ...


State Regulations Are Failing Our Children: An Analysis Of Child Marriage Laws In The United States, Rachel L. Schuman May 2019

State Regulations Are Failing Our Children: An Analysis Of Child Marriage Laws In The United States, Rachel L. Schuman

William & Mary Law Review

No abstract provided.


Enforcing Principled Constitutional Limits On Federal Power: A Neo-Federalist Refinement Of Justice Cardozo's Jurisprudence, Robert J. Pushaw Jr. Feb 2019

Enforcing Principled Constitutional Limits On Federal Power: A Neo-Federalist Refinement Of Justice Cardozo's Jurisprudence, Robert J. Pushaw Jr.

William & Mary Law Review

Since the New Deal of the mid-1930s, Congress has asserted virtually absolute power to (1) “regulate Commerce ... among the States,” (2) tax and spend for the “general Welfare,” and (3) delegate “legislative Power[ ]” to the executive branch. From 1937 until 1994, the Supreme Court rejected every claim that such statutes had exceeded Congress’s Article I authority and usurped the states’ reserved powers under the Tenth Amendment. Over the past quarter century, conservative Justices have tried, and failed, to develop principled constitutional limits on the federal government while keeping the modern administrative and social welfare state largely intact.

The conservatives ...


The Theory And Practice Of Contestatory Federalism, James A. Gardner Nov 2018

The Theory And Practice Of Contestatory Federalism, James A. Gardner

William & Mary Law Review

Madisonian theory holds that a federal division of power is necessary to the protection of liberty, but that federalism is a naturally unstable form of government organization that is in constant danger of collapsing into either unitarism or fragmentation. Despite its inherent instability, this condition may be permanently maintained, according to Madison, through a constitutional design that keeps the system in equipoise by institutionalizing a form of perpetual contestation between national and subnational governments. The theory, however, does not specify how that contestation actually occurs, and by what means.

This paper investigates Madison’s hypothesis by documenting the methods actually ...


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 Federal–State Standing Gap: How To Enforce Federal Law In Federal Court Without Article Iii Standing, Peter N. Salib, David K. Suska May 2018

The Federal–State Standing Gap: How To Enforce Federal Law In Federal Court Without Article Iii Standing, Peter N. Salib, David K. Suska

William & Mary Bill of Rights Journal

You, too, can sue Donald Trump under the Emoluments Clause!

Since Inauguration Day, several lawsuits have been filed against President Trump because of his refusal to divest certain assets. They assert that Trump’s business interests conflict with the Emoluments Clause of Article I. That arcane provision forbids certain federal officials from accepting any perquisite or gain from a foreign monarch or state. The suits contend, for example, that a foreign dignitary’s booking of a room at the Trump International Hotel in Washington, D.C. would constitute an unlawful emolument.

Most commentators quickly threw cold water on the prospect ...


Dual Sovereignty Is Out, Time For Concurrent Jurisdiction To Shine, Scott Jacobson Feb 2018

Dual Sovereignty Is Out, Time For Concurrent Jurisdiction To Shine, Scott Jacobson

William & Mary Environmental Law and Policy Review

No abstract provided.


Pricing The Fourth Amendment, Miriam H. Baer Mar 2017

Pricing The Fourth Amendment, Miriam H. Baer

William & Mary Law Review

Critics have long decried the Fourth Amendment’s lack of an adequate remedy to secure its compliance. Neither the exclusionary rule nor the threat of civil liability deters police misconduct, leaving scholars to cast about for alternative measures. The emphasis on penalties, however, overlooks a different problem: detection. Because of policing’s fast-paced nature, even so-called “flagrant” Fourth Amendment violations trigger insufficient liability due to low probabilities of detection.

This Article addresses this problem by drawing on the Pigouvian tax literature. The Pigouvian tax—sometimes referred to as a “corrective tax”—is a pricing instrument imposed by regulators in an ...


Implementing Enumeration, Andrew Coan May 2016

Implementing Enumeration, Andrew Coan

William & Mary Law Review

The enumeration of legislative powers in Article I of the U.S. Constitution implies that those powers must have limits. This familiar “enumeration principle” has deep roots in American constitutional history and has played a central role in recent federalism decisions of the U.S. Supreme Court. Courts and commentators, however, have seldom rigorously considered what follows from embracing it. The answer is by no means straightforward. The enumeration principle tells us that federal power must be subject to some limit, but it does not tell us what that limit should be. Nor does it tell us how the Constitution ...


The Narrowing Of Federal Power By The American Political Capital, David Fontana Apr 2015

The Narrowing Of Federal Power By The American Political Capital, David Fontana

William & Mary Bill of Rights Journal

This Essay--—prepared for a symposium hosted by the William & Mary Bill of Rights Journal on the future of the District of Columbia--—argues that American federal power can be better understood by considering the features of the metropolitan area that houses the most important parts of the American federal government. In other American metropolitan areas and in most capital metropolitan areas elsewhere in the world, local life features multiple and diverse industries. Washington is the metropolitan area that houses the most important parts of the American federal government, and Washington is dominated by the government and related industries. Washington ...


Retained By The People: Federalism, The Ultimate Sovereign, And Natural Limits On Government Power, Stephanie Hall Barclay Oct 2014

Retained By The People: Federalism, The Ultimate Sovereign, And Natural Limits On Government Power, Stephanie Hall Barclay

William & Mary Bill of Rights Journal

Brewing tensions between state governments and the federal government have reached a boiling point unmatched since the civil rights debates of the 1960s. In light of the rapid expansion of federal power combined with colliding views on various policies, the call for states’ rights has increasingly become a rallying cry for lawmakers that has gained traction with groups on varying points along the political spectrum, as well as a frequent theory employed by the Supreme Court. While the system of federalism created by the Constitution certainly has its unique benefits, and while it is true that the federal government was ...


Windsor Beyond Marriage: Due Process, Equality & Undocumented Immigration, Anthony O'Rourke Jun 2014

Windsor Beyond Marriage: Due Process, Equality & Undocumented Immigration, Anthony O'Rourke

William & Mary Law Review

The Supreme Court’s recent decision in United States v. Windsor, invalidating part of the federal Defense of Marriage Act, presents a significant interpretive challenge. Early commentators have criticized the majority opinion’s lack of analytical rigor, and expressed doubt that Windsor can serve as a meaningful precedent with respect to constitutional questions outside the area of same-sex marriage. This Article offers a more rehabilitative reading of Windsor and shows how the decision can be used to analyze a significant constitutional question concerning the use of state criminal procedure to regulate immigration.

From Windsor’s holding, the Article distills two ...


Parental Exclusion From The Education Governance Kaleidoscope: Providing A Political Voice For Marginalized Students In Our Time Of Disruption, Tiffani N. Darden May 2014

Parental Exclusion From The Education Governance Kaleidoscope: Providing A Political Voice For Marginalized Students In Our Time Of Disruption, Tiffani N. Darden

William & Mary Bill of Rights Journal

This Article develops how the judiciary should play an instrumental part in amplifying the parent’s voice as a citizenship broker for their child. The Supreme Court scrutinizes school-board actions with little consideration of parents’ substantive due process right to control their child’s education through the political process. Through representative school boards, effective participation models, and an enforcement framework, parents could hold the power to affect education policies. Parents deserve full citizenship recognition in the tiered processes controlling public education policy. In addition to recognizing “quality” education as a government interest, the Supreme Court should also take into account ...


The Federal Circuit As A Federal Court, Paul R. Gugliuzza May 2013

The Federal Circuit As A Federal Court, Paul R. Gugliuzza

William & Mary Law Review

The U.S. Court of Appeals for the Federal Circuit has exclusive jurisdiction over patent appeals and, as a consequence, the last word on many legal issues important to innovation policy. This Article shows how the Federal Circuit augments its already significant power by impeding other government institutions from influencing the patent system. Specifically, the Federal Circuit has shaped patent-law doctrine, along with rules of jurisdiction, procedure, and administrative law, to preserve and expand the court's power in four interinstitutional relationships: the court's federalism relationship with state courts, its separation of powers relationship with the executive and legislative ...


The States Of Immigration, Rick Su Mar 2013

The States Of Immigration, Rick Su

William & Mary Law Review

Immigration is a national issue and a federal responsibility. So why are states so actively involved? Their legal authority over immigration is questionable. Their institutional capacity to regulate it is limited. Even the legal actions that states take sometimes seem pointless from a regulatory perspective. Why do they enact legislation that essentially copies existing federal law? Why do they pursue regulations that courts are likely to enjoin or strike down? Why do they give so little priority to the immigration laws that do survive?

This Article sheds light on this seemingly irrational behavior. It argues that state laws are being ...


The Federal Common Law Of Statutory Interpretation: Erie For The Age Of Statutes, Abbe R. Gluck Feb 2013

The Federal Common Law Of Statutory Interpretation: Erie For The Age Of Statutes, Abbe R. Gluck

William & Mary Law Review

No abstract provided.


Untethered Norms After Erie Railroad Co. V. Tompkins: Positivism, International Law, And The Return Of The "Brooding Omnipresence", Lea Brilmayer Feb 2013

Untethered Norms After Erie Railroad Co. V. Tompkins: Positivism, International Law, And The Return Of The "Brooding Omnipresence", Lea Brilmayer

William & Mary Law Review

No abstract provided.


General Law In Federal Court, Anthony J. Bellia Jr., Bradford R. Clark Feb 2013

General Law In Federal Court, Anthony J. Bellia Jr., Bradford R. Clark

William & Mary Law Review

No abstract provided.


Can Erie Survive As Federal Common Law?, Craig Green Feb 2013

Can Erie Survive As Federal Common Law?, Craig Green

William & Mary Law Review

No abstract provided.


A Critical Guide To Erie Railroad Co. V. Tompkins, Caleb Nelson Feb 2013

A Critical Guide To Erie Railroad Co. V. Tompkins, Caleb Nelson

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 ...


The Transformation Of Immigration Federalism, Jennifer M. Chacón Dec 2012

The Transformation Of Immigration Federalism, Jennifer M. Chacón

William & Mary Bill of Rights Journal

No abstract provided.


Our Federalism(S), Heather K. Gerken Apr 2012

Our Federalism(S), Heather K. Gerken

William & Mary Law Review

No abstract provided.


The Role Of Charity In A Federal System, Brian Galle Jan 2012

The Role Of Charity In A Federal System, Brian Galle

William & Mary Law Review

This Article critiques the prevailing justification for subsidies for the charitable sector and suggests a new alternative. Existing rationales are based on an economic model that assumes a single government whose decisions are guided by a single median voter. I argue that this theory is unpersuasive when translated to federal systems, such as the United States, in which there may instead be thousands of competing local governments.

I then attempt to construct a theory of the charitable sector that takes account of interactions between charity, local government, and national government. In this revised account, charity is most important when federalism ...


Laws For Learning In An Age Of Acceleration, John O. Mcginnis Nov 2011

Laws For Learning In An Age Of Acceleration, John O. Mcginnis

William & Mary Law Review

No abstract provided.


Globalization And Structure, Julian Ku, John Yoo Nov 2011

Globalization And Structure, Julian Ku, John Yoo

William & Mary Law Review

No abstract provided.


Federalism Under Obama, Gillian E. Metzger Nov 2011

Federalism Under Obama, Gillian E. Metzger

William & Mary Law Review

No abstract provided.


Federal Law In State Court: Judicial Federalism Through A Relational Lens, Charlton C. Copeland Mar 2011

Federal Law In State Court: Judicial Federalism Through A Relational Lens, Charlton C. Copeland

William & Mary Bill of Rights Journal

Enforcing federalism is most commonly thought to involve the search for a
constitutional delegation of substantive power. Although in modern times the substantive power might be overlapping or shared authority, federalism enforcement proceeds from a determination about the site of substantive power. This conception of federalism enforcement preserves the Constitution’s commitment to fractionated authority by determining whether power is legitimately possessed. Thus we understand significant federalism disputes in our age as framed by whether Congress has the authority to enact comprehensive health care reform legislation, or whether Congress
has exceeded its authority in reenacting the Voting Rights Act’s ...


The Vote From Beyond The Grave, Krysta R. Edwards Mar 2010

The Vote From Beyond The Grave, Krysta R. Edwards

William & Mary Law Review

No abstract provided.