Law Commons^™

Protections Against Tyranny: How Article V Should Guide Constitutional Interpretation, Mary Strong

Indiana Law Journal

This Note seeks to explain what Article V means for the methods of constitutional change outside of the traditional Article V amendment process. Specifically, I argue that Article V was meant to limit the federal government from usurping power without first attaining the consent of the people. Because the Supreme Court is part of the federal government and is often considered a counter-majoritarian institution, the Court cannot extend the powers of the federal government through constitutional interpretation beyond the bounds allowed in the Constitution. Therefore, the only means to change the power structure of the federal government (the balance of …

Justice Scalia’S Bottom-Up Approach To Shaping The Law, Meghan J. Ryan

William & Mary Bill of Rights Journal

Justice Antonin Scalia is among the most famous Supreme Court Justices in history. He is known for his originalism and conservative positions, as well as his witty and acerbic legal opinions. One of the reasons Justice Scalia’s opinions are so memorable is his effective use of rhetorical devices, which convey colorful images and understandable ideas. One might expect that such powerful opinions would be effective in shaping the law, but Justice Scalia’s judicial philosophy was often too conservative to persuade a majority of his fellow Justices on the Supreme Court. Further, his regular criticisms of his Supreme Court colleagues were …

Magic Words, Kiel Brennan-Marquez

William & Mary Bill of Rights Journal

Broadly speaking, this Article has two goals. The first is to demonstrate the prominence of functionalism in the interpretive practices of the Supreme Court. Reading a case like NFIB, it would be easy to conclude that the tension between labels and function reflects a deep rift in our legal order. On reflection, though, the rift turns out to be something of a mirage. While judicial opinions do occasionally employ the rhetoric of label-formalism, we are all functionalists at heart.

The Article’s second goal is to explore two exceptions to this norm. One is a faux exception—an exception to functionalism that …

A Constitutional Defense Of Legislative History, Paul E. Mcgreal

William & Mary Bill of Rights Journal

No abstract provided.

Easing The Spring: Strict Scrutiny And Affirmative Action After The Redistricting Cases, Pamela S. Karlan

William & Mary Law Review

No abstract provided.

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.

Seventh Amendment Right To Jury Trial In Non-Article Iii Proceedings: A Study In Dysfunctional Constitutional Theory, Martin H. Redish, Daniel J. La Fave

William & Mary Bill of Rights Journal

The right to a jury trial in civil cases, as enumerated in the Seventh Amendment to the United States Constitution, is an integral part of the Bill of Rights. Nevertheless, in this Article, Professor Redish and Mr. La Fave argue that the Supreme Court has failed to preserve this right when Congress has relegated claims to a non-Article III forum. Furthermore, they argue, the Court has done so without providing any basis in constitutional theory to justify such a relinquishment.

Professor Redish and Mr. La Fave first examine the Supreme Court's interpretation of the Seventh Amendment in instances where Congress …

A Lesson In Incaution, Overwork, And Fatigue: The Judicial Miscraftsmanship Of Segura V. United States, Joshua Dressler

William & Mary Law Review

No abstract provided.