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Articles 1 - 25 of 25
Full-Text Articles in Law
Trust And Retaliation: The First Amendment And Trump’S Taxes, Timothy Zick
Trust And Retaliation: The First Amendment And Trump’S Taxes, Timothy Zick
Popular Media
No abstract provided.
Qualified Immunity And Constitutional Structure, Katherine Mims Crocker
Qualified Immunity And Constitutional Structure, Katherine Mims Crocker
Faculty Publications
A range of scholars has subjected qualified immunity to a wave of criticism— and for good reasons. But the Supreme Court continues to apply the doctrine in ever more aggressive ways. By advancing two claims, this Article seeks to make some sense of this conflict and to suggest some thoughts toward a resolution.
First, while the Court has offered and scholars have rejected several rationales for the doctrine, layering in an account grounded in structural constitutional concerns provides a historically richer and analytically thicker understanding of the current qualified-immunity regime. For suits against federal officials, qualified immunity acts as a …
Congress, The Courts, And Party Polarization: Why Congress Rarely Checks The President And Why The Courts Should Not Take Congress’S Place, Neal Devins
Faculty Publications
No abstract provided.
When Can A State Sue The United States?, Tara Leigh Grove
When Can A State Sue The United States?, Tara Leigh Grove
Faculty Publications
State suits against the federal government are on the rise. From Massachusetts’ challenge to federal environmental policy, to Oregon’s confrontation over physician-assisted suicide, to Texas’s suit over the Obama administration’s immigration program, States increasingly go to court to express their disagreement with federal policy. This Article offers a new theory of state standing that seeks to explain when a State may sue the United States. I argue that States have broad standing to sue the federal government to protect state law. Accordingly, a State may challenge federal statutes or regulations that preempt, or otherwise undermine the continued enforceability of, state …
The Lost History Of The Political Question Doctrine, Tara Leigh Grove
The Lost History Of The Political Question Doctrine, Tara Leigh Grove
Faculty Publications
This Article challenges the conventional narrative about the political question doctrine. Scholars commonly assert that the doctrine, which instructs that certain constitutional questions are “committed” to Congress or to the executive branch, has been part of our constitutional system since the early nineteenth century. Furthermore, scholars argue that the doctrine is at odds with the current Supreme Court’s view of itself as the “supreme expositor” of all constitutional questions. This Article calls into question both claims. The Article demonstrates, first, that the current political question doctrine does not have the historical pedigree that scholars attribute to it. In the nineteenth …
Article Iii In The Political Branches, Tara Leigh Grove
Article Iii In The Political Branches, Tara Leigh Grove
Faculty Publications
In many separation of powers debates, scholars excavate the practices and constitutional interpretations of Congress and the executive branch in order to discern the scope of various constitutional provisions. I argue that similar attention to political branch practice is warranted in the Article III context. That is true, in large part because much of the constitutional history of the federal courts has been written not by the federal judiciary, but by the legislative and executive branches. To illustrate this point, this Essay focuses on the Exceptions Clause of Article III. The Supreme Court has said little about the meaning of …
Section 2: Congress & The Obama White House, Institute Of Bill Of Rights Law, William & Mary Law School
Section 2: Congress & The Obama White House, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Standing Outside Article Iii, Tara Leigh Grove
Standing Outside Article Iii, Tara Leigh Grove
Faculty Publications
The U.S. Supreme Court has insisted that standing doctrine is a “bedrock” requirement only of Article III. Accordingly, both jurists and scholars have assumed that the standing of the executive branch and the legislature, like that of other parties, depends solely on Article III. But I argue that these commentators have overlooked a basic constitutional principle: federal institutions must have affirmative authority for their actions, including the power to bring suit or appeal in federal court. Article III defines the federal “judicial Power” and does not purport to confer any authority on the executive branch or the legislature. Executive and …
Section 5: First Amendment & Separation Of Powers, Institute Of Bill Of Rights Law, William & Mary Law School
Section 5: First Amendment & Separation Of Powers, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Erie, Swift, And Legal Positivism, Michael S. Green
Erie, Swift, And Legal Positivism, Michael S. Green
Popular Media
No abstract provided.
A (Modest) Separation Of Powers Success Story, Tara Leigh Grove
A (Modest) Separation Of Powers Success Story, Tara Leigh Grove
Faculty Publications
No abstract provided.
Presidential Unilateralism And Political Polarization: Why Today's Congress Lacks The Will And The Way To Stop Presidential Initiatives, Neal Devins
Faculty Publications
No abstract provided.
Federalism And The Tug Of War Within: Seeking Checks And Balance In The Interjurisdictional Gray Area, Erin Ryan
Faculty Publications
Federalism and the Tug of War Within explores tensions that arise among the underlying values of federalism when state or federal actors regulate within the "interjurisdictional gray area" that implicates both local and national concerns. Drawing examples from the failed response to Hurricane Katrina and other interjurisdictional problems to illustrate this conflict, the Article demonstrates how the trajectory set by the New Federalism's "strict-separationist" model of dual sovereignty inhibits effective governance in these contexts. In addition to the anti-tyranny, pro-accountability, and localism-protective values of federalism, the Article identifies a problem-solving value inherent in the capacity requirement of American federalism's subsidiarity …
Devolution Of Implementing Policymaking In Network Governments, Charles H. Koch Jr.
Devolution Of Implementing Policymaking In Network Governments, Charles H. Koch Jr.
Faculty Publications
No abstract provided.
Should The Supreme Court Fear Congress?, Neal Devins
Should The Supreme Court Fear Congress?, Neal Devins
Faculty Publications
No abstract provided.
The Constitutional Limits To Court-Stripping, Michael J. Gerhardt
The Constitutional Limits To Court-Stripping, Michael J. Gerhardt
Faculty Publications
This Article is part of a colloquy between Professor Michael J. Gerhardt and Professor Martin Redish about the constitutionality of court-stripping measures. Court-stripping measures are laws restricting federal court jurisdiction over particular subject matters. In particular, the authors discuss the constitutionality of the Marriage Protection Act of 2004. Professor Gerhardt argues that the Act is unconstitutional and threatens to destroy the principles of separation of powers, federalism and due process. It prevents Supreme Court review of Congressional action and hinders the uniformity and finality of constitutional law. Furthermore, the Act violates the equal protection component of the Fifth Amendment Due …
Using Statutes To Set Legislative Rules: Entrenchment, Separation Of Powers, And The Rules Of Proceedings Clause, Aaron-Andrew P. Bruhl
Using Statutes To Set Legislative Rules: Entrenchment, Separation Of Powers, And The Rules Of Proceedings Clause, Aaron-Andrew P. Bruhl
Faculty Publications
No abstract provided.
Asking The Right Questions: How The Courts Honored The Separation Of Powers By Reconsidering Miranda, Neal Devins
Asking The Right Questions: How The Courts Honored The Separation Of Powers By Reconsidering Miranda, Neal Devins
Faculty Publications
No abstract provided.
Section 9: The Court And Politics, Institute Of Bill Of Rights Law, William & Mary Law School
Section 9: The Court And Politics, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
A Proposal To Resolve Interbranch Disputes On The Practice Field, Paul R. Verkuil
A Proposal To Resolve Interbranch Disputes On The Practice Field, Paul R. Verkuil
Faculty Publications
No abstract provided.
The President's Powers As Commander-In-Chief Versus Congress' War Power And Appropriations Power, Charles W. Bennett, Arthur B. Culvahouse, Geoffrey P. Miller, William Bradford Reynolds, William W. Van Alstyne
The President's Powers As Commander-In-Chief Versus Congress' War Power And Appropriations Power, Charles W. Bennett, Arthur B. Culvahouse, Geoffrey P. Miller, William Bradford Reynolds, William W. Van Alstyne
Faculty Publications
This joint work explores a variety of viewpoints all centered around the War Powers Resolution and its application to the situation in the Persian Gulf.
The Status Of Independent Agencies After Bowsher V. Synar, Paul R. Verkuil
The Status Of Independent Agencies After Bowsher V. Synar, Paul R. Verkuil
Faculty Publications
No abstract provided.
Book Review Of The Second American Revolution, Neal Devins
Book Review Of The Second American Revolution, Neal Devins
Faculty Publications
No abstract provided.
The Constitution After Watergate, William F. Swindler
The Constitution After Watergate, William F. Swindler
Faculty Publications
No abstract provided.
Accountability: The Constitutional Goal, William F. Swindler
Accountability: The Constitutional Goal, William F. Swindler
Faculty Publications
No abstract provided.