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A Voice In The Wilderness: John Paul Stevens, Election Law, And A Theory Of Impartial Governance, Cody S. Barnett, Joshua A. Douglas Nov 2018

A Voice In The Wilderness: John Paul Stevens, Election Law, And A Theory Of Impartial Governance, Cody S. Barnett, Joshua A. Douglas

William & Mary Law Review

Justice John Paul Stevens retired from the Supreme Court almost a decade ago and turned ninety-eight years old in April 2018. How should we remember his legacy on the Supreme Court? This Article places his legacy within his election law jurisprudence. Specifically, Justice Stevens provided a consistent theory, which we term “impartial governance,” that has had a lasting impact on the field. This theory undergirds Justice Stevens’s creation of the important Anderson-Burdick-Crawford balancing test that federal courts use to construe the constitutionality of laws that impact the right to vote, such as voter ID laws. It is part of ...


Beyond Headlines & Holdings: Exploring Some Less Obvious Ramifications Of The Supreme Court’S 2017 Free-Speech Rulings, Clay Calvert May 2018

Beyond Headlines & Holdings: Exploring Some Less Obvious Ramifications Of The Supreme Court’S 2017 Free-Speech Rulings, Clay Calvert

William & Mary Bill of Rights Journal

Digging behind the holdings, this Article analyzes less conspicuous, yet highly consequential aspects of the United States Supreme Court’s First Amendment rulings during the opening half of 2017. The four facets of the opinions addressed here—items both within individual cases and cutting across them—hold vast significance for future free-speech battles. Nuances of the justices’ splintering in Matal v. Tam, Packingham v. North Carolina, and Expressions Hair Design v. Schneiderman are examined, as is the immediate impact of Justice Anthony Kennedy’s Packingham dicta regarding online social networks. Furthermore, Justice Sonia Sotomayor’s solo concurrence in the threats ...


Protean Statutory Interpretation In The Courts Of Appeals, James J. Brudney, Lawrence Baum Feb 2017

Protean Statutory Interpretation In The Courts Of Appeals, James J. Brudney, Lawrence Baum

William & Mary Law Review

This Article is the first in-depth empirical and doctrinal analysis of differences in statutory interpretation between the courts of appeals and the Supreme Court. It is also among the first to anticipate how the Supreme Court’s interpretive approach may shift with the passing of Justice Scalia.

We begin by identifying factors that may contribute to interpretive divergence between the two judicial levels, based on their different institutional structures and operational realities. In doing so, we discuss normative implications that may follow from the prospect of such interpretive divergence. We then examine how three circuit courts have used dictionaries and ...


Some Thoughts On The Study Of Judicial Behavior, Lee Epstein May 2016

Some Thoughts On The Study Of Judicial Behavior, Lee Epstein

William & Mary Law Review

Back in the 1940s the political scientist C. Herman Pritchett began tallying the votes and opinions of Supreme Court Justices. His goal was to use data to test the hypothesis that the Justices were not only following the “law,” but were also motivated by their own ideological preferences.

With the hindsight of nearly eighty years, we know that Pritchett’s seemingly small project helped to create a big field: Judicial Behavior, which I take to be the theoretical and empirical study of the choices judges make. Political scientists continue to play a central role, but they are now joined by ...


The Second Dimension Of The Supreme Court, Joshua B. Fischman, Tonja Jacobi Apr 2016

The Second Dimension Of The Supreme Court, Joshua B. Fischman, Tonja Jacobi

William & Mary Law Review

Describing the Justices of the Supreme Court as “liberals” and conservatives” has become so standard— and the left-right division on the Court is considered so entrenched— that any deviation from that pattern is treated with surprise. Attentive Court watchers know that the Justices are not just politicians in robes, deciding each case on a purely ideological basis. Yet the increasingly influential empirical legal studies literature assumes just that— that a left-right ideological dimension fully describes the Supreme Court. We show that there is a second, more legally-focused dimension of judicial decision making. A continuum between legalism and pragmatism also divides ...


Stanley V. Illinois’S Untold Story, Josh Gupta-Kagan Mar 2016

Stanley V. Illinois’S Untold Story, Josh Gupta-Kagan

William & Mary Bill of Rights Journal

Stanley v. Illinois is one of the Supreme Court’s more curious landmark cases. The holding is well known: the Due Process Clause both prohibits states from removing children from the care of unwed fathers simply because they are not married and requires states to provide all parents with a hearing on their fitness. By recognizing strong due process protections for parents’ rights, Stanley reaffirmed Lochner-era cases that had been in doubt and formed the foundation of modern constitutional family law. But Peter Stanley never raised due process arguments, so it has long been unclear how the Court reached this ...


Neutral Principles And Some Campaign Finance Problems, John O. Mcginnis Feb 2016

Neutral Principles And Some Campaign Finance Problems, John O. Mcginnis

William & Mary Law Review

This Article has both positive and normative objectives. As a positive matter, it shows that the Roberts Court’s campaign finance regulation jurisprudence can be best explained as a systematic effort to integrate that case law with the rest of the First Amendment, making the neutral principles refined in other social contexts govern this more politically salient one as well. It demonstrates that the typical Roberts Court majority in campaign finance cases follows precedent, doctrine, and traditional First Amendment theory, while the dissents tend to carve out exceptions at each of these levels.

As a normative matter, it argues that ...


Extralegal Supreme Court Policy-Making, Joëlle Anne Moreno Dec 2015

Extralegal Supreme Court Policy-Making, Joëlle Anne Moreno

William & Mary Bill of Rights Journal

The Colbert Report aired its final episode on December 18, 2014.1 Nine years earlier, on the first episode, Stephen Colbert coined the word “truthiness.” Truthiness satirized contemporary disinterest in empirical information in a country increasingly “divided between those who think with their head and those who know with their heart.” Truthiness was not just the Merriam-Webster word of the year. Over the past decade, it has been the unspoken mantra of reporters who give equal time to climate science denialists, faith healers, and vaccine refusers. When Justices of the Supreme Court decide questions of scientific or empirical fact—such ...


The Supreme Court’S Quiet Revolution: Redefining The Meaning Of Jurisdiction, Erin Morrow Hawley May 2015

The Supreme Court’S Quiet Revolution: Redefining The Meaning Of Jurisdiction, Erin Morrow Hawley

William & Mary Law Review

Over the last three decades, the Rehnquist and Roberts Courts have carried out a quiet revolution in the nature and meaning of jurisdiction. Historically, federal courts generally treated procedural requirements, like filing deadlines and exhaustion prerequisites, as presumptively “jurisdictional.” In case after case, the modern Court has reversed course. The result has been an unobtrusive but seminal redefinition of what jurisdiction means to begin with: the adjudicatory authority of the federal courts. This shift is momentous, but it has been obscured by the Court’s erstwhile imposition of a clear statement requirement. For courts to find a statutory requirement jurisdictional ...


The Rhetoric Of Constitutional Absolutism, Eric Berger Feb 2015

The Rhetoric Of Constitutional Absolutism, Eric Berger

William & Mary Law Review

Though constitutional doctrine is famously unpredictable, Supreme Court Justices often imbue their constitutional opinions with a sense of inevitability. Rather than concede that evidence is sometimes equivocal, Justices insist with great certainty that they have divined the correct answer. This Article examines this rhetoric of constitutional absolutism and its place in our broader popular constitutional discourse. After considering examples of the Justices’ rhetorical performances, this Article explores strategic, institutional, and psychological explanations for the phenomenon. It then turns to the rhetoric’s implications, weighing its costs and benefits. This Article ultimately argues that the costs outweigh the benefits and proposes ...


How To Make Sense Of Supreme Court Standing Cases— – A Plea For The Right Kind Of Realism, Richard H. Fallon Jr. Oct 2014

How To Make Sense Of Supreme Court Standing Cases— – A Plea For The Right Kind Of Realism, Richard H. Fallon Jr.

William & Mary Bill of Rights Journal

No abstract provided.


Standing And The Role Of Federal Courts: Triple Error Decisions In Clapper V. Amnesty International Usa And City Of Los Angeles V. Lyons, Vicki C. Jackson Oct 2014

Standing And The Role Of Federal Courts: Triple Error Decisions In Clapper V. Amnesty International Usa And City Of Los Angeles V. Lyons, Vicki C. Jackson

William & Mary Bill of Rights Journal

No abstract provided.


Governmental Sovereignty Actions, Ann Woolhandler Oct 2014

Governmental Sovereignty Actions, Ann Woolhandler

William & Mary Bill of Rights Journal

No abstract provided.


Does The Supreme Court Ignore Standing Problems To Reach The Merits? Evidence (Or Lack Thereof) From The Roberts Court, Heather Elliott Oct 2014

Does The Supreme Court Ignore Standing Problems To Reach The Merits? Evidence (Or Lack Thereof) From The Roberts Court, Heather Elliott

William & Mary Bill of Rights Journal

No abstract provided.


Oasis Or Mirage: The Supreme Court's Thirst For Dictionaries In The Rehnquist And Roberts Eras, James J. Brudney, Lawrence Baum Nov 2013

Oasis Or Mirage: The Supreme Court's Thirst For Dictionaries In The Rehnquist And Roberts Eras, James J. Brudney, Lawrence Baum

William & Mary Law Review

The Supreme Court’s use of dictionaries, virtually non-existent before 1987, has dramatically increased during the Rehnquist and Roberts Court eras to the point where as many as one-third of statutory decisions invoke dictionary definitions. The increase is linked to the rise of textualism and its intense focus on ordinary meaning. This Article explores the Court’s new dictionary culture in depth from empirical and doctrinal perspectives. We find that while textualist justices are heavy dictionary users, purposivist justices invoke dictionary definitions with comparable frequency. Further, dictionary use overall is strikingly ad hoc and subjective. We demonstrate how the Court ...


The Constitution, The Roberts Court, And Business: The Significant Business Impact Of The 2011-2012 Supreme Court Term, Corey Ciocchetti Apr 2013

The Constitution, The Roberts Court, And Business: The Significant Business Impact Of The 2011-2012 Supreme Court Term, Corey Ciocchetti

William & Mary Business Law Review

The 2011–2012 Supreme Court Term created quite the media buzz. The Affordable Care Act cases and the controversial Arizona immigration law dominated the headlines. But the Term also included other fascinating yet less sensationalized cases. The Court heard its fair share of criminal law controversies involving derelict defense attorneys and prosecutors, as well as civil procedure disputes involving qualified immunity for witnesses in grand jury proceedings and private parties assisting the government in litigation. The Justices also entertained arguments on a federal law allowing United States citizens born in Jerusalem to have “Israel” stamped as their birthplace on a ...


Explaining The Supreme Court's Shrinking Docket, Ryan J. Owens, David A. Simon Mar 2012

Explaining The Supreme Court's Shrinking Docket, Ryan J. Owens, David A. Simon

William & Mary Law Review

In recent years, the United States Supreme Court has decided fewer cases than at any other time in its recent history. Scholars and practitioners alike have criticized the drop in the Court’s plenary docket. Some even believe that the Court has reneged on its duty to clarify and unify the law. A host of studies examine potential reasons for the Court’s change in docket size, but few rely on an empirical analysis of this change and no study examines the correlation between ideological homogeneity and docket size. In a comprehensive study, the authors analyze ideological and contextual factors ...


Oral Dissenting On The Supreme Court, Christopher W. Schmidt, Carolyn Shapiro Oct 2010

Oral Dissenting On The Supreme Court, Christopher W. Schmidt, Carolyn Shapiro

William & Mary Bill of Rights Journal

In this Article we offer the first comprehensive evaluation of oral dissenting on the Supreme Court. We examine the practice in both historical and contemporary perspective, take stock of the emerging academic literature on the subject, and suggest a new framework for analysis of oral dissenting. Specifically, we put forth several claims. Contrary to the common assumption of scholarship and media coverage, oral dissents are nothing new. Oral dissenting has a long tradition, and its history provides valuable lessons for understanding the potential and limits of oral dissents today. Furthermore, not all oral dissents are alike. Dissenting Justices may have ...


Law Versus Ideology: The Supreme Court And The Use Of Legislative History, David S. Law, David Zaring Apr 2010

Law Versus Ideology: The Supreme Court And The Use Of Legislative History, David S. Law, David Zaring

William & Mary Law Review

Much of the social science literature on judicial behavior has focused on the impact of ideology on how judges vote. For the most part, however, legal scholars have been reluctant to embrace empirical scholarship that fails to address the impact of legal constraints and the means by which judges reason their way to particular outcomes. This Article attempts to integrate and address the concerns of both audiences by way of an empirical examination of the Supreme Court’s use of a particular interpretive technique— namely, the use of legislative history to determine the purpose and meaning of a statute. We ...


In Defense Of Ideology: A Principled Apporach To The Supreme Court Confirmation Process, Lori A. Ringhand Oct 2009

In Defense Of Ideology: A Principled Apporach To The Supreme Court Confirmation Process, Lori A. Ringhand

William & Mary Bill of Rights Journal

In this paper, Professor Ringhand offers a principled defense of an ideological approach to the Supreme Court Justice confirmation process. In constructing her argument, she does three things. First, she explores how the insights provided by recent empirical legal scholarship have created a need to rethink the role of the Supreme Court and, consequently, the process by which we select Supreme Court Justices. In doing so, Professor Ringhand explains how these insights have called into question much of our conventional constitutional narrative, and how this failure of the conventional narrative has in turn undermined traditional objections to an ideologically-based confirmation ...


The Common Law Genius Of The Warren Court, David A. Strauss Dec 2007

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 ...


The Supreme Court And Foreign Sources Of Law: Two Hundred Years Of Practice And The Juvenile Death Penalty Decision, Steven Calabresi, Stephanie Dotson Zimdahl Dec 2005

The Supreme Court And Foreign Sources Of Law: Two Hundred Years Of Practice And The Juvenile Death Penalty Decision, Steven Calabresi, Stephanie Dotson Zimdahl

William & Mary Law Review

No abstract provided.


Bridging The Enforcement Gap In Constitutional Law: A Critique Of The Supreme Court's Theory That Self-Restraint Promotes Federalism, Robert J. Pushaw Jr. Feb 2005

Bridging The Enforcement Gap In Constitutional Law: A Critique Of The Supreme Court's Theory That Self-Restraint Promotes Federalism, Robert J. Pushaw Jr.

William & Mary Law Review

No abstract provided.


Retaining Judicial Authority: A Preliminary Inquiry On The Dominion Of Judges, Larry Catá Backer Dec 2003

Retaining Judicial Authority: A Preliminary Inquiry On The Dominion Of Judges, Larry Catá Backer

William & Mary Bill of Rights Journal

Why do the people and institutions of democratic states, and in particular those of the United States, obey judges ? This article examines the foundations of judicial authority in the United States. This authority is grounded on principles of dominance derived from the organization of institutional religion. The judge in Western states asserts authority on the same basis as the priest - but not the priest as conventionally understood. Rather, the authority of the judge in modern Western democratic states is better understood when viewed through the analytical lens of priestly function developed in the philosophy of Friedrich Nietzsche. Focusing on the ...


Federalism And Formalism, Allison H. Eid Apr 2003

Federalism And Formalism, Allison H. Eid

William & Mary Bill of Rights Journal

Many commentators have criticized the Supreme Court's New Federalism decisions as "excessively formalistic. " In this Article, Professor Eid argues that this "standard critique" is wrong on both a descriptive and normative level. Descriptively, she argues that the standard critique mistakenly downplays the extent to which the New Federalism decisions consider the values that federalism serves, and contends that they employ the same sort of formalism/functionalism blend that is found in the Court's separation of powers jurisprudence. Professor Eid then contends that the standard critique's normative prescription - a case-by-case balancing test that would weigh the federal interest ...


Treating The Pen And The Sword As Constitutional Equals: How And Why The Supreme Court Should Apply Its First Amendment Expertise To The Great Second Amendment Debate, David G. Browne Apr 2003

Treating The Pen And The Sword As Constitutional Equals: How And Why The Supreme Court Should Apply Its First Amendment Expertise To The Great Second Amendment Debate, David G. Browne

William & Mary Law Review

No abstract provided.


Disabiling The Ada: Essences, Better Angels, And Unprincipled Neutrality Claims, Aviam Soifer Feb 2003

Disabiling The Ada: Essences, Better Angels, And Unprincipled Neutrality Claims, Aviam Soifer

William & Mary Law Review

No abstract provided.


An Outcomes Analysis Of Scope Of Review Standards, Paul R. Verkuil Dec 2002

An Outcomes Analysis Of Scope Of Review Standards, Paul R. Verkuil

William & Mary Law Review

No abstract provided.


Understanding Prophylactic Remedies Through The Looking Glass Of Bush V. Gore, Tracy A. Thomas Dec 2002

Understanding Prophylactic Remedies Through The Looking Glass Of Bush V. Gore, Tracy A. Thomas

William & Mary Bill of Rights Journal

Using the context of Bush v. Gore as a vehicle for discussion, Professor Thomas examines the use and legitimacy of prophylactic remedies. In this Article, Professor Thomas advances the argument that the broad prophylactic remedy provided by the U.S. Supreme Court in Bush v. Gore may be viewed as contrary to the law of remedies in that it operated to negate, rather than enforce, legal rights. In particular, prophylactic remedies which are untailored and unachievable, as in Bush v. Gore, threaten the legitimacy of prophylaxis. Professor Thomas argues that the use of prophylactic remedies itself is not problematic, but ...


The Random Muse: Authorship And Indeterminacy, Alan R. Durham Dec 2002

The Random Muse: Authorship And Indeterminacy, Alan R. Durham

William & Mary Law Review

No abstract provided.