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Full-Text Articles in Law

No Arbitrary Power: An Originalist Theory Of The Due Process Of Law, Randy E. Barnett, Evan D. Bernick Apr 2019

No Arbitrary Power: An Originalist Theory Of The Due Process Of Law, Randy E. Barnett, Evan D. Bernick

William & Mary Law Review

“Due process of law” is arguably the most controversial and frequently litigated phrase in the Constitution of the United States. Although the dominant originalist view has long been that the Fifth and Fourteenth Amendment’s Due Process of Law Clauses are solely “process” guarantees that do not constrain the content or “substance” of legislation at all, originalist scholars have in recent years made fresh inquiries into the historical evidence and concluded that there is a weighty case for some form of substantive due process. In this Article, we review and critique those findings, employing our theory of good-faith originalist interpretation ...


Reliance On Nonenforcement, Zachary S. Price Feb 2017

Reliance On Nonenforcement, Zachary S. Price

William & Mary Law Review

Can regulated parties ever rely on official assurances that the law will not apply to them? Recent marijuana and immigration nonenforcement policies have presented this question in acute form. Both policies effectively invited large numbers of legally unsophisticated people to undertake significant legal risks in reliance on formally nonbinding governmental assurances. The same question also arises across a range of civil, criminal, and administrative contexts, and it seems likely to recur in the future so long as partisan polarization and sharp disagreement over the merits of existing law persist.

This Article addresses when, if ever, constitutional due process principles may ...


Premodern Constitutionalism, Martin H. Redish, Matthew Heins Apr 2016

Premodern Constitutionalism, Martin H. Redish, Matthew Heins

William & Mary Law Review

The traditional concept of American constitutionalism has long been a basic assumption not subject to tremendous examination. For generations, scholars have understood our Constitution to be the byproduct of a revolutionary war fought for representation and a foundinggeneration concernedwith preventingtyranny in any form. The traditional understandingof American constitutionalism thus consists of two elements: the underlyingprinciple of skeptical optimism, which can be found in the historical context within which the Framers gathered to draft the Constitution, and the political apparatus effectuating that idea— countermajoritarian constraint set against majoritarian power— which reveals itself through reverse engineeringfrom the structural Constitution.

Over the last ...


Judicial Power To Regulate Plea Bargaining, Darryl K. Brown Mar 2016

Judicial Power To Regulate Plea Bargaining, Darryl K. Brown

William & Mary Law Review

Plea bargaining in the United States is in critical respects unregulated, and a key reason is the marginal role to which judges have been relegated. In the wake of Santobello v. New York (1971), lower courts crafted Due Process doctrines through which they supervised the fairness of some aspects of the plea bargaining process. Within a decade, however, U.S. Supreme Court decisions began to shut down any constitutional basis for judicial supervision of plea negotiations or agreements. Those decisions rested primarily on two claims: separation of powers and the practical costs of regulating plea bargaining in busy criminal justice ...


The Real Constitutional Problem With State Judicial Selection: Due Process, Judicial Retention, And The Dangers Of Popular Constitutionalism, Martin H. Redish, Jennifer Aronoff Oct 2014

The Real Constitutional Problem With State Judicial Selection: Due Process, Judicial Retention, And The Dangers Of Popular Constitutionalism, Martin H. Redish, Jennifer Aronoff

William & Mary Law Review

In Caperton v. A.T. Massey Coal Co., decided in 2009, the Supreme Court held for the first time that conduct related to a judicial election campaign violated a litigant’s right to procedural due process because the opposing litigant had contributed an inordinate amount of money to the campaign of one of the justices ruling on the case. The due process danger recognized in Caperton rests on a fear of retrospective gratitude—that is, the fear that the Justice would decide his contributor’s case differently because he was grateful for the litigant’s generous support. The Court’s ...


Is Guilt Dispositive? Federal Habeas After Martinez, Justin F. Marceau Jun 2014

Is Guilt Dispositive? Federal Habeas After Martinez, Justin F. Marceau

William & Mary Law Review

Federal habeas review of criminal convictions is not supposed to be a second opportunity to adjudge guilt. Oliver Wendell Holmes, among others, has said that the sole question on federal habeas is whether the prisoner’s constitutional rights were violated. By the early 1970s, however, scholars criticized this rights-based view of habeas and sounded the alarm that postconviction review had become too far removed from questions of innocence. Most famously, in 1970 Judge Friendly criticized the breadth of habeas corpus by posing a single question: Is innocence irrelevant? In his view habeas review that focused exclusively on questions of rights ...


Knowledge Is Power: The Fundamental Right To Record Present Observations In Public, Travis Gunn Mar 2013

Knowledge Is Power: The Fundamental Right To Record Present Observations In Public, Travis Gunn

William & Mary Law Review

No abstract provided.


Valid Rule Due Process Challenges: Bond V. United States And Erie's Constitutional Source, Kermit Roosevelt Iii Feb 2013

Valid Rule Due Process Challenges: Bond V. United States And Erie's Constitutional Source, Kermit Roosevelt Iii

William & Mary Law Review

No abstract provided.


A General Theory Of Governance: Due Process And Lawmaking Power, Louise Weinberg Feb 2013

A General Theory Of Governance: Due Process And Lawmaking Power, Louise Weinberg

William & Mary Law Review

This Article proposes a general theory describing the nature and sources of law in American courts. Erie Railroad Co. v. Tompkins is rejected for this purpose. Better, more general theory is available, flowing from the Due Process Clauses. At its narrowest, the proposed theory is consonant with Erie but generalizes it, embracing federal as well as state law and statutory as well as decisional law in both state and federal courts. More broadly, beyond this unification of systemic thinking, the interest-analytic methodology characteristic of due process extends to a range of substantive constitutional problems. These include problems concerning both the ...


Avoiding Another Eldorado: Balancing Parental Liberty And The Risk Of Error With Governmental Interest In The Well-Being Of Children In Complex Cases Of Child Removal, Andrew T. Erwin Dec 2009

Avoiding Another Eldorado: Balancing Parental Liberty And The Risk Of Error With Governmental Interest In The Well-Being Of Children In Complex Cases Of Child Removal, Andrew T. Erwin

William & Mary Law Review

No abstract provided.


Statutory Damages In Copyright Law: A Remedy In Need Of Reform, Pamela Samuelson, Tara Wheatland Nov 2009

Statutory Damages In Copyright Law: A Remedy In Need Of Reform, Pamela Samuelson, Tara Wheatland

William & Mary Law Review

No abstract provided.


Political Judging: When Due Process Goes International, Montré D. Carodine Mar 2007

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 ...


Dumbo's Feather: An Examination And Critque Of The Supreme Court's Use, Misuse, And Abuse Of Tradition In Protecting Fundamental Rights, Ronald J. Krotoszynski Jr. Dec 2006

Dumbo's Feather: An Examination And Critque Of The Supreme Court's Use, Misuse, And Abuse Of Tradition In Protecting Fundamental Rights, Ronald J. Krotoszynski Jr.

William & Mary Law Review

The Justices of the Supreme Court have a great deal in common with the gifted pachyderm from the Walt Disney animated classic feature Dumbo. Like Dumbo's "magic" feather that purportedly enabled him to exercise his natural ability to fly, the tradition limitation on the Court's jurisprudence on unenumerated fundamental constitutional rights provides a more-apparent-than real constraint on the Court's almost unlimited ability to nullify legislative and executive action. In all too many substantive due process cases, reason seems to follow a predetermined result, rather than the result in the case following from the applicable governing principles. In ...


Universes Colliding: The Constitutional Implications Of Arbitral Class Actions, Maureen A. Weston Mar 2006

Universes Colliding: The Constitutional Implications Of Arbitral Class Actions, Maureen A. Weston

William & Mary Law Review

No abstract provided.


Banging On The Backdoor Draft: The Constitutional Validity Of Stop-Loss In The Military, Evan M. Wooten Dec 2005

Banging On The Backdoor Draft: The Constitutional Validity Of Stop-Loss In The Military, Evan M. Wooten

William & Mary Law Review

No abstract provided.


Procedural Justice: Tempering The State's Response To Domestic Violence, Deborah Epstein Apr 2002

Procedural Justice: Tempering The State's Response To Domestic Violence, Deborah Epstein

William & Mary Law Review

No abstract provided.


Expedited Removal And Discrimination In The Asylum Process: The Use Of Humanitarian Aid As A Political Tool, Erin M. O'Callaghan Mar 2002

Expedited Removal And Discrimination In The Asylum Process: The Use Of Humanitarian Aid As A Political Tool, Erin M. O'Callaghan

William & Mary Law Review

No abstract provided.


Introduction: Fidelity, Economic Liberty, And 1937, Editors Of The William And Mary Law Review Dec 1999

Introduction: Fidelity, Economic Liberty, And 1937, Editors Of The William And Mary Law Review

William & Mary Law Review

No abstract provided.


Will, Judgment, And Economic Liberty: Mr. Justice Souter And The Mistranslation Of The Due Process Clause, Alan J. Meese Dec 1999

Will, Judgment, And Economic Liberty: Mr. Justice Souter And The Mistranslation Of The Due Process Clause, Alan J. Meese

William & Mary Law Review

No abstract provided.


The Fragmented Liberty Clause, Rebecca L. Brown Dec 1999

The Fragmented Liberty Clause, Rebecca L. Brown

William & Mary Law Review

No abstract provided.


Lost Fidelities, Barry Cushman Dec 1999

Lost Fidelities, Barry Cushman

William & Mary Law Review

No abstract provided.


Fidelity, Basic Liberties, And The Specter Of Lochner, James E. Fleming Dec 1999

Fidelity, Basic Liberties, And The Specter Of Lochner, James E. Fleming

William & Mary Law Review

No abstract provided.


The Inevitable Infidelities Of Constitutional Translation: The Case Of The New Deal, John O. Mcginnis Dec 1999

The Inevitable Infidelities Of Constitutional Translation: The Case Of The New Deal, John O. Mcginnis

William & Mary Law Review

No abstract provided.


Lochner, Parity, And The Chinese Laundry Cases, David E. Bernstein Dec 1999

Lochner, Parity, And The Chinese Laundry Cases, David E. Bernstein

William & Mary Law Review

No abstract provided.


The Fiscal Powers And The 1930s: Entrenchment, John Harrison Dec 1999

The Fiscal Powers And The 1930s: Entrenchment, John Harrison

William & Mary Law Review

No abstract provided.


Who Decides If There Is "Triumph In The Ultimate Agony?" Constitutional Theory And The Emerging Right To Die With Dignity, Brian C. Goebel Feb 1996

Who Decides If There Is "Triumph In The Ultimate Agony?" Constitutional Theory And The Emerging Right To Die With Dignity, Brian C. Goebel

William & Mary Law Review

No abstract provided.


Separation Of Powers And The Limits Of Independence, Richard J. Pierce Jr. Feb 1989

Separation Of Powers And The Limits Of Independence, Richard J. Pierce Jr.

William & Mary Law Review

No abstract provided.


"Some Kind Of Hearing" In England, Charles H. Koch Jr. Dec 1981

"Some Kind Of Hearing" In England, Charles H. Koch Jr.

William & Mary Law Review

No abstract provided.


Specific Enforcement To Ensure Due Process In Plea Bargaining, Kevin D. Norwood Dec 1979

Specific Enforcement To Ensure Due Process In Plea Bargaining, Kevin D. Norwood

William & Mary Law Review

No abstract provided.


Protecting The Low Income Consumer: Procedural Due Process Revisited Dec 1972

Protecting The Low Income Consumer: Procedural Due Process Revisited

William & Mary Law Review

No abstract provided.