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Full-Text Articles in Law
Tribalism And Democracy, Seth Davis
Tribalism And Democracy, Seth Davis
William & Mary Law Review
Americans have long talked about “tribalism” as a way of talking about their democracy. In recent years, for example, commentators have pointed to “political tribalism” as what ails American democracy. According to this commentary, tribalism is incompatible with democracy. Some commentators have cited Indian Tribes as evidence to support this incompatibility thesis, and the thesis has surfaced within federal Indian law and policy in various guises up to the present day with disastrous consequences for Indian Tribes. Yet much of the talk about tribalism and democracy—within federal Indian law, and also without it—has had little to do with actual tribes. …
Statutes And Democratic Self-Authorship, Paul W. Kahn, Kiel Brennan-Marquez
Statutes And Democratic Self-Authorship, Paul W. Kahn, Kiel Brennan-Marquez
William & Mary Law Review
In this Article, we argue that both sides of the usual debate over statutory interpretation—text versus purpose—rest on a common, but flawed, premise. Judges and scholars have assumed that legislative bodies are the authors of statutes. We disagree; instead, we argue that the people are the authors of statutes. Legislative bodies play an indispensable role in the process: they draft statutes. And courts play a similarly indispensable role: they interpret statutes. But ultimately, it is the polity—we, the people—that is responsible, as authors, for the content of the law.
This shift yields dramatic consequences. To date, no theory of statutory …
The Jury And Participatory Democracy, Alexandra D. Lahav
The Jury And Participatory Democracy, Alexandra D. Lahav
William & Mary Law Review
No abstract provided.
Second-Order Diversity Revisited, Jeffrey Abramson
Second-Order Diversity Revisited, Jeffrey Abramson
William & Mary Law Review
No abstract provided.
Statutory Interpretation As Constestatory Democracy, Glen Staszewski
Statutory Interpretation As Constestatory Democracy, Glen Staszewski
William & Mary Law Review
This Article provides a novel solution to the countermajoritarian difficulty in statutory interpretation by applying recent insights from civic republican theory to the adjudication of statutory disputes in the modern regulatory state. From a republican perspective, freedom consists of the absence of the potential for arbitrary domination, and democracy should therefore include both electoral and contestatory dimensions. The Article argues that statutory interpretation in the modern regulatory state is best understood as a mechanism of contestatory democracy. It develops this conception of statutory interpretation by considering the distinct roles of legislatures, administrative agencies, and courts in making and implementing the …
The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen
The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen
William & Mary Law Review
Democracy does not spontaneously occur by citizens gathering to choose laws. Instead, representative democracy takes place within an extensive legal framework that determines such matters as who gets to vote, how campaigns are conducted, and what conditions must be met for representatives to make valid law. Many of the “rules of the road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against partisan gerrymandering—which is partly responsible for the fact that most congressional districts are no longer party competitive, but instead are either safely Republican or safely Democratic—and against onerous …
Tort Experiments In The Laboratories Of Democracy, Alexandra B. Klass
Tort Experiments In The Laboratories Of Democracy, Alexandra B. Klass
William & Mary Law Review
This Article considers the broad range of "tort experiments" states have undertaken in recent years, as well as the changing attitudes of Congress and the Supreme Court toward state tort law. Notably, while states have limited tort rights and remedies in the products liability and personal injury areas in recent years, they have at the same time increased tort rights and remedies to address new societal problems associated with privacy, publicity, consumer protection, and environmental harm. At the same time, however, Congress has eliminated state tort law entirely in targeted areas without replacing it with corresponding federal remedies. The Supreme …
The Theocratic Challenge To Constitution Drafting In Post-Conflict States, Ran Hirschl
The Theocratic Challenge To Constitution Drafting In Post-Conflict States, Ran Hirschl
William & Mary Law Review
No abstract provided.
St. George Tucker And The Legacy Of Slavery, Michael Kent Curtis
St. George Tucker And The Legacy Of Slavery, Michael Kent Curtis
William & Mary Law Review
No abstract provided.
Collateral Damage: The Endangered Center In American Politics, Samuel Issacharoff
Collateral Damage: The Endangered Center In American Politics, Samuel Issacharoff
William & Mary Law Review
No abstract provided.
Religion, Democracy, And Autonomy: A Political Parable, Steven D. Smith
Religion, Democracy, And Autonomy: A Political Parable, Steven D. Smith
William & Mary Law Review
No abstract provided.
Rethinking The History Of American Freedom, Michael J. Klarman
Rethinking The History Of American Freedom, Michael J. Klarman
William & Mary Law Review
No abstract provided.