Law Commons^™

Arbitrary Arbiters: Evaluating The Right To Be Informed Of Eligibility For Discretionary Relief In Removal Proceedings, Michael Jordan

William & Mary Bill of Rights Journal

No abstract provided.

The Epistemic Function Of Fusing Equal Protection And Due Process, Deborah Hellman

William & Mary Bill of Rights Journal

The fusion of equal protection and due process has attracted significant attention with scholars offering varied accounts of its purpose and function. Some see the combination as productive, creating a constitutional violation that neither clause would generate alone. Others see the combination as merely strategic, offered to make a claim acceptable at a particular historical moment but not genuinely necessary. This Article offers a third alternative. Judges have and should bring both equal protection and due process together to learn what each clause independently requires. On this Epistemic vision of constitutional fusion, a focus on equality helps judges learn what …

Dear Colleague: Due Process Is Not Under Attack At Colleges And Universities, As Shown Through A Comparative Analysis Of College Disciplinary Committees And American Juries, Mara Emory Shingleton

William & Mary Bill of Rights Journal

No abstract provided.

Highway Robbery: Due Process, Equal Protection, And Punishing Poverty With Driver’S License Suspensions, Thomas Capretta

William & Mary Bill of Rights Journal

No abstract provided.

Even When You Win, You Lose: Executive Order 13769 & The Depressing State Of Procedural Due Process In The Context Of Immigration, Amy L. Moore

William & Mary Bill of Rights Journal

No abstract provided.

The Lawfulness Of The Same-Sex Marriage Decisions: Charles Black On Obergefell, Toni M. Massaro

William & Mary Bill of Rights Journal

No abstract provided.

Due Process As Choice Of Law: A Study In The History Of A Judicial Doctrine, Matthew J. Steilen

William & Mary Bill of Rights Journal

This Article argues that procedural due process can be understood as a choice of-law doctrine. Many procedural due process cases require courts to choose between a procedural regime characteristic of the common law—personal notice, oral hearing, neutral judge, and jury trial—and summary procedures employed in administrative agencies.

This way of thinking about procedural due process is at odds with the current balancing test associated with the Supreme Court’s opinion in Mathews v. Eldridge. This Article aims to show, however, that it is consistent with case law over a much longer period, indeed, most of American history. It begins with a …

(Same) Sex, Lies, And Democracy: Tradition, Religion, And Substantive Due Process (With An Emphasis On Obergefell V. Hodges), Stephen M. Feldman

William & Mary Bill of Rights Journal

Substantive due process issues implicitly concern voice. Whose voice will be heard? Although such issues often remain submerged, the Justices occasionally translate them into disputes over democratic participation and power. The Supreme Court’s most important substantive due process decision in years, Obergefell v. Hodges, entailed such a battle over democracy. The multiple dissenting opinions insisted that the decision demeaned the opponents of same-sex marriage, many of whom were inspired by traditional values and religious convictions. The majority explicitly disagreed, reasoning that the case resolved the rights of same-sex couples to marry and did not diminish the opponents’ voices. The dissenters …

Historically Unappealing: Boumediene V. Bush, Appellate Avoidance Mechanisms, And Black Holes Extending Beyond Guantanamo Bay, Dennis Schmelzer

William & Mary Bill of Rights Journal

No abstract provided.

Diagnosed With Time Is Money: Arbitrary Medicare Provisions Differentiating Observation Services From Inpatient Admissions Violate Beneficiaries’ Due Process Rights, Stephanie Masaba

William & Mary Bill of Rights Journal

No abstract provided.

Specificity Or Dismissal: The Improper Extension Of Rule 9(B) To Negligent Misrepresentation As A Deprivation Of Plaintiffs’ Procedural Due Process Rights, Julie A. Cook

William & Mary Bill of Rights Journal

No abstract provided.

Professional Licenses And Substantive Due Process: Can States Compel Physicians To Provide Their Services, Carolyn R. Cody

William & Mary Bill of Rights Journal

No abstract provided.

Deadly Drones, Due Process, And The Fourth Amendment, William Funk

William & Mary Bill of Rights Journal

No abstract provided.

An Essay On Due Process And The Endowment Effect, Paul R. Verkuil

William & Mary Bill of Rights Journal

No abstract provided.

"Give Me A Few More Minutes!": How Virginia Violates Due Process By Hitting The Snooze Button On A Timely Declaration Of Death, Samantha Lauren Soller

William & Mary Bill of Rights Journal

No abstract provided.

Sacrifice And Sacred Honor: Why The Constitution Is A "Suicide Pact", Peter Brandon Bayer

William & Mary Bill of Rights Journal

Most legal scholars and elected officials embrace the popular cliché that “the Constitution is not a suicide pact.” Typically, those commentators extol the “Constitution of necessity,” the supposition that Government, essentially the Executive, may take any action—may abridge or deny any fundamental right—to alleviate a sufficiently serious national security threat. The “Constitution of necessity” is wrong. This Article explains that strict devotion to the “fundamental fairness” principles of the Constitution’s Due Process Clauses is America’s utmost legal and moral duty, surpassing all other considerations, even safety, security and survival.

The analysis begins with the most basic premises: the definition of …

Shadowing The Flag: Extending The Habeas Writ Beyond Guantanamo, Dawinder S. Sidhu

William & Mary Bill of Rights Journal

The writ of habeas corpus activates courts’ duty to check arbitrary or unlawful restraints by the Executive on individual liberty. In times of war, courts have been compelled to determine whether the writ is available to individuals held by the Executive outside of the territorial boundaries of the United States. In Johnson v. Eisentrager, in which World War II detainees were held in Germany, the Supreme Court answered in the negative, while in Boumediene v. Bush, involving post–9/11 detainees housedat Guantánamo, the Court reached the opposite conclusion. Operating within these two guideposts, the U.S. Court of Appeals for the District …

A Child-Centered Response To The Elkins Family Law Task Force, Amy M. Pellman, Robert N. Jacobs, Dara K. Reiner

William & Mary Bill of Rights Journal

In Elkins v. Superior Court, 163 P.3d 160 (Cal. 2007), California’s Supreme Court asked the Judicial Council to form a task force to make recommendations to increase “access to justice” in family court, because it was concerned about rules, policies, and procedures that put self-represented litigants at an unfair disadvantage in parentageand dissolution cases.

Neither the task force’s report in 2010 nor the legislation that the report inspired the same year addresses children’s due process rights, even though children ordinarily have no access to justice. This Article shows that due process sometimes requires the trial court to appoint counsel for …

Finding Equilibrium: Exploring Due Process Violations In The Whistleblower Provisions Of The Fraud Enforecement And Recovery Act Of 2009, Laura Hough

William & Mary Bill of Rights Journal

No abstract provided.

Dodging A Bullet: Mcdonald V. City Of Chicago And The Limits Of Progessive Originalism, Dale E. Ho

William & Mary Bill of Rights Journal

The Supreme Court’s decision in last term’s gun rights case, McDonald v. City of Chicago, punctured the conventional wisdom after District of Columbia v. Heller that “we are all originalists now.” Surprisingly, many progressive academics were disappointed. For “progressive originalists,” McDonald was a missed opportunity to overrule the Slaughter-House Cases and to revitalize the Privileges or Immunities Clause of the Fourteenth Amendment. In their view, such a ruling could have realigned progressive constitutional achievements with originalism and relieved progressives of the albatross of substantive due process, while also unlocking long-dormant constitutional text to serve as the source of new unenumerated …

Your Honor, I Seen Him With That Gang: The Constitutionality Of The Federal Criminal Street Gang Statute In The Wake Of Apprendi V. New Jersey, Jennifer E. Fleming

William & Mary Bill of Rights Journal

No abstract provided.

The Unbearable Lightness Of Marriage In The Abortion Decisions Of The Supreme Court: Altered States In Constitutional Law, William W. Van Alstyne

William & Mary Bill of Rights Journal

No abstract provided.

Constitutional Solipsism: Toward A Thick Doctrine Of Article Iii Duty; Or Why The Federal Circuits' Nonprecedential Status Rules Are (Profoundly) Unconstitutional, Penelope Pether

William & Mary Bill of Rights Journal

No abstract provided.

Whither Sexual Orientation Analysis?: The Proper Methodology When Due Process And Equal Protection Intersect, Sharon E. Rush

William & Mary Bill of Rights Journal

This Article suggests that there is Proper Methodology that courts apply when reviewing cases at the intersection of due process and equal protection. Briefly, courts operate under a rule that heightened review applies if either a fundamental right or a suspect class is involved in a case, and that rational basis review applies if neither is involved (the "Rule"). Two primary exceptions to the Rule exist, and this Article identifies them as the "Logical" and "Ill Motives" Exceptions. The Logical Exception applies when a court need not apply heightened review because a law fails rational basis review. The Ill Motives …

Be They Fish Or Not Fish: The Fishy Registration Of Nonsexual Offenders, Ofer Raban

William & Mary Bill of Rights Journal

No abstract provided.

A Child's Right: What Should The State Be Required To Provide To Teenagers Aging Out Of Foster Care, Katherine M. Swift

William & Mary Bill of Rights Journal

Teenagers aging out of foster care face harms that can be traced to their lack of preparation for adulthood. This Article argues that teenagers in foster care have a substantive due process right to services not only while they are in state custody but also after they age out of care. The lower federal courts have interpreted the Supreme Court's decision in DeShaney v. Winnebago County Department of Social Services to mean that foster children-like prisoners and mentally retarded people held in state custody-have a substantive due process right to personal safety. What the courts have not considered is how …

Sexuality And Sovereignty: The Global Limits And Possibilities Of A Lawrence, Sonia K. Katyal

William & Mary Bill of Rights Journal

No abstract provided.

Is Economic Exclusion A Legitimate State Interest? Four Recent Cases Test The Boundaries, Timothy Sandefur

William & Mary Bill of Rights Journal

No abstract provided.

Comparative And Noncomparative Justice: Some Guidelines For Constitutional Adjudication, Raleigh Hannah Levine, Russell Pannier

William & Mary Bill of Rights Journal

No abstract provided.

Safari Into The Snake Pit: The State-Created Danger Doctrine, Laura Oren

William & Mary Bill of Rights Journal

No abstract provided.