Law Commons^™

Political Judges And Popular Justice: A Conservative Victory Or A Conservative Dilemma?, George D. Brown

William & Mary Law Review

Most of the judges in America are elected. Yet the institution of the elected judiciary is in trouble, perhaps in crisis. The pressures of campaigning, particularly raising money, have produced an intensity of electioneering that many observers see as damaging to the institution itself. In an extraordinary development, four justices of the Supreme Court recently expressed concern over possible loss of trust in state judicial systems. Yet mechanisms that states have put in place to strike a balance between the accountability values of an elected judiciary and rule of law values of unbiased adjudication are increasingly invalidated by the federal …

Congressional Criminality And Balance Of Powers: Are Internal Filter Teams Really What Our Forefathers Envisioned?, Emily E. Eineman

William & Mary Bill of Rights Journal

No abstract provided.

Signing Statements And Divided Government, Neal Devins

William & Mary Bill of Rights Journal

No abstract provided.

Second Class Citizen Soldiers: A Proposal For Greater First Amendment Protections For America's Military Personnel, Emily Reuter

William & Mary Bill of Rights Journal

No abstract provided.

The On/Off Switch, Philip Heymann

William & Mary Bill of Rights Journal

No abstract provided.

Presidential Signing Statements In Perspective, Nelson Lund

William & Mary Bill of Rights Journal

No abstract provided.

Presidential Signing Statements And The Rule Of Law As An "Unstructured Institution", Peter M. Shane

William & Mary Bill of Rights Journal

No abstract provided.

Litigating Presidential Signing Statements, Michele Estrin Gilman

William & Mary Bill of Rights Journal

No abstract provided.

Signing Statements As Declaratory Judgments: The President As Judge, Phillip J. Cooper

William & Mary Bill of Rights Journal

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 …

The "Benefits" Of Non-Delegation: Using The Non-Delegation Doctrine To Bring More Rigor To Benefit-Cost Analysis, Victor B. Flatt

William & Mary Bill of Rights Journal

No abstract provided.

Political Judging: When Due Process Goes International, Montré D. Carodine

William & Mary Law Review

The Supreme Court's recent reliance on foreign precedent to interpret the Constitution sparked a firestorm of criticism and spawned a rich debate regarding the extent to which U.S. courts should defer to foreign law when developing U.S. constitutional norms. This Article looks at a subset of the issue of deference to foreign law and international influences in judicial decision making: the extent to which our courts should apply American notions of due process in determining whether to recognize and enforce judgments obtained abroad. Courts reviewing foreign judgments to determine whether they areworthy of recognition have created an "international due process"analysis. …

Devolution Of Implementing Policymaking In Network Governments, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

Queries From Querin: Guantanamo Tribunals And The Separation Of Powers Doctrine, Tanja Korpi

William & Mary Bill of Rights Journal

No abstract provided.

Should The Supreme Court Fear Congress?, Neal Devins

Faculty Publications

No abstract provided.

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 …

Dual Constitutions And Constitutional Duels: Separation Of Powers And State Implementation Of Federally Inspired Regulatory Programs And Standards, Jim Rossi

William & Mary Law Review

Frequently, state-wide executive agencies and localities attempt to implement federally inspired programs. Two predominant examples are cooperative federalism programs and incorporation of federal standards in state-specific law. Federally inspired programs can bump into state constitutional restrictions on the allocation of powers, especially in states whose constitutional systems embrace stronger prohibitions on legislative delegation than the weak restrictions at the federal level, where national goals and standards are made.

This Article addresses this tension between dual federal/state normative accounts of the constitutional allocation of powers in state implementation of federally inspired programs. To the extent the predominant ways of resolving the …

American Insurance Association V. Garamendi And Executive Preemption In Foreign Affairs, Brannon P. Denning, Michael D. Ramsey

William & Mary Law Review

No abstract provided.

Proclamations, National Monuments, And The Scope Of Judicial Review Under The Antiquities Act Of 1906, Roberto Iraola

William & Mary Environmental Law and Policy Review

No abstract provided.

Trade Promotion Authority: Fast Track For The Twenty-First Century, Laura L. Wright

William & Mary Bill of Rights Journal

No abstract provided.

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.

Judicial Power In The Constitutional Theory Of James Madison, Jack N. Rakove

William & Mary Law Review

No abstract provided.

Religious Land Use And Institutionalized Persons Act Of 2000: The Land Use Provisions Are Both Unconstitutional And Unnecessary, Ada-Marie Walsh

William & Mary Bill of Rights Journal

The Religious Land Use and Institutionalized Persons Act of 2000 was Congress 'response to the Supreme Court's striking down of the Religious Freedom Restoration Act in City of Boerne v. Flores. In promulgating the Religious Land Use and Institutionalized Persons Act, Congress, inter alia, sought to protect the free exercise of religion from excessive governmental meddling while remedying discrimination suffered by religious individuals and groups in the area of land use. In dealing solely with land use provisions of the RLUIPA, the author argues that the Religious Land Use and lnstitutionalized Person Act is unconstitutional because it violates the Establishment …

Structural Review, Pseudo-Second-Look Decision Making, And The Risk Of Diluting Constitutional Liberty, Dan T. Coenen

William & Mary Law Review

No abstract provided.

Subconsitutional Constitutional Law: Supplement, Sham, Or Substitute?, Mark Tushnet

William & Mary Law Review

No abstract provided.

A Constitution Of Collaboration: Protecting Fundamental Values With Second-Look Rules Of Interbranch Dialogue, Dan T. Coenen

William & Mary Law Review

No abstract provided.

Clinton, Kosovo, And The Final Destruction Of The War Powers Resolution, Geoffrey S. Corn

William & Mary Law Review

No abstract provided.

Executive Privilege: The Clinton Administration In The Courts, Neil Kinkopf

William & Mary Bill of Rights Journal

Exploring the role of the judicial branch of the federal government in Clinton-era executive privilege claims, Neil Kinkopf suggests that courts have misunderstood executive privilege. Professor Kinkopf points out that federal courts have given different treatment to executive privilege claims asserted in judicial and congressional arenas, protecting the Judiciary from encroachment by the executive branch, while avoiding becoming involved in controversies among the political branches. He argues that the judicial confusion about executive privilege stems from the fact that courts have interpreted cases such as Clinton v. Jones to be about the separation of powers between the executive and judicial …

Executive Privilege And Interbranch Comity After Clinton, Jonathan L. Entin

William & Mary Bill of Rights Journal

Although both constitutional theory and practical considerations offer powerful reasons for Congress and the President to prefer negotiation rather than litigation of separation of powers disputes, the Clinton Administration litigated and lost several important cases dealing with presidential power. Some commentators have suggested that these rulings will undermine the presidency for years after Clinton leaves office. Professor Entin assesses some factors, notably the phenomenon of divided government, that might have contributed to the difficulty of reaching interbranch accommodations in recent years and suggests that the long-term implications of the adverse judicial rulings may be less severe than the pessimists fear.

Asking The Right Questions: How The Courts Honored The Separation Of Powers By Reconsidering Miranda, Neal Devins

Faculty Publications

No abstract provided.