Law Commons^™

Section 3: Privacy, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 6: First Amendment, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 1: Moot Court: Bryant V. Hill, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 5: Criminal Law, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 2: Property And Economic Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 4: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Recovered Memory Of Childhood Sexual Abuse, Aubrey Immelman

Psychology Faculty Publications

This article examines the psychological basis for repression and recovery of traumatic memories, presents the results of research on potential sources of error in delayed or recovered memories, and offers possible reasons (primarily related to clinical practice and collective behavior) for false accusations of sexual abuse.

Double Jeopardy Issues In The Financial Sector, Richard L. Stone, Francis J. Facciolo

Faculty Publications

(Excerpt)

Double jeopardy issues arise regularly in the financial, banking and commodities industries where both civil and criminal statutes and penalties are used in successive prosecutions by federal and state governments to sanction the same conduct.

Recent Supreme Court and federal court decisions have established new standards for determining when civil fines and other civil penalties constitute “punishment” for purposes of the double jeopardy clause of the Fifth Amendment.

These decisions indicate that where a civil penalty imposed by a federal or state actor bears no “rational relation” to any actual damages caused, the penalty will be characterized as punishment …

Everyman's Fourth Amendment: Privacy Or Mutual Trust Between Government And Citizen, Scott E. Sundby

Articles

No abstract provided.

Connecticut V. Doehr And Procedural Due Process Requirements For Prejudgment Remedies: The Sniadach Tetrad Revisited, Linda Beale

Law Faculty Research Publications

No abstract provided.

The October 1992 Supreme Court Term And Antitrust: More Objectivity Than Ever, Stephen Calkins

Law Faculty Research Publications

Time and again the Rehnquist Court has favored antitrust certainty. When faced with a choice between achieving individualized justice and adhering to relatively clear, generalized rules, it has usually chosen the latter. The certainty of objective evidence has been preferred to the more customized resort to subjective evidence.

This pattern continued during the 1992-93 term. Perceived objectivity through generalized rules triumphed in the term's four antitrust cases, Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., Spectrum Sports, Inc. v. McQuillan, Hartford Fire Insurance Co. v. California, and Brooke Group Ltd. v. Brown & Williamson Tobacco …

Voice In Government: The People, Emily Calhoun

Publications

No abstract provided.

Book Review Of The Constitution Besieged, By Howard Gillman, Edward A. Purcell Jr.

Other Publications

No abstract provided.

Unitariness And Independence: Solicitor General Control Over Independent Agency Litigation, Neal Devins

Faculty Publications

With a few exceptions, the Solicitor General controls all aspects of independent agency litigation before the Supreme Court. Solicitor General control of Supreme Court litigation creates a tension between independent agency freedom and the Solicitor General's authority. On the one hand, Solicitor General control provides the United States with a unitary voice before the Supreme Court, and provides the Court with a trustworthy litigator to explicate the government's position. On the other hand, such control may undermine the autonomy of independent agency decision making. In this Article, the author argues for a hybrid model of independent agency litigation in the …

Textualism And The Future Of The Chevron Doctrine, Thomas W. Merrill

Faculty Scholarship

The last decade has been a remarkable one for statutory interpretation. For most of our history, American judges have been pragmatists when it comes to interpreting statutes. They have drawn on various conventions – the plain meaning rule, legislative history, considerations of statutory purpose, canons of construction – "much as a golfer selects the proper club when he gauges the distance to the pin and the contours of the course." The arrival of Justice Scalia on the Supreme Court has changed this. Justice Scalia is a foundationalist, insisting that certain interpretational tools should be permanently banned from judicial use. What …

The Rise And Rise Of The Administrative State, Gary S. Lawson

Faculty Scholarship

The post-New Deal administrative state is unconstitutional, and its validation by the legal system amounts to nothing less than a bloodless constitutional revolution. The original New Dealers were aware, at least to some degree, that their vision of the national government's proper role and structure could not be squared with the written Constitution: The Administrative Process, James Landis's classic exposition of the New Deal model of administration, fairly drips with contempt for the idea of a limited national government subject to a formal, tripartite separation of powers. Faced with a choice between the administrative state and the Constitution, the architects …

A Heterodox Catechism, Paul Campos

Publications

No abstract provided.

The Death And Transfiguration Of Frye, Richard D. Friedman

Articles

The rule of Frye v. United States was seventy years old, and had long dominated American law on the question of how well established a scientific principle must be for it to provide the basis for expert testimony. Even after the passage of the Federal Rules of Evidence, several of the federal circuits, as well as various states, purported to adhere to Frye's "general acceptance" standard. But now, unanimously, briefly, and with no apparent angst, the United States Supreme Court has held in Daubert v. Merrell Dow Pharmaceuticals, Inc. that the Frye rule is incompatible with the Federal Rules.

Foreword: "Do What You Can...", Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

"Do what you can with what you have." That's what Thurgood Marshall preached. That is how he lived. He used what he had to change the world forever.

A Modest Proposal For A Political Court, Thomas W. Merrill

Faculty Scholarship

I offer a modest proposal. You can decide for yourself whether it is offered in the spirit of Jonathan Swift, or whether I mean it to be taken seriously.

Brecht V. Abrahamson: Harmful Error In Habeas Corpus Law, James S. Liebman, Randy Hertz

Faculty Scholarship

For the past two and one-half decades, the Supreme Court and the lower federal courts have applied the same rule for assessing the harmlessness of constitutional error in habeas corpus proceedings as they have applied on direct appeal of both state and federal convictions. Under that rule, which applied to all constitutional errors except those deemed per se prejudicial or per se reversible, the state could avoid reversal upon a finding of error only by proving that the error was harmless beyond a reasonable doubt. The Supreme Court adopted this stringent standard in Chapman v. California to fulfill the federal …

Controversial Science In The Courtroom: Daubert And The Law's Hubris, Paul S. Milich

Faculty Publications By Year

No abstract provided.

Switching Time And Other Thought Experiments: The Hughes Court And Constitutional Transformation, Richard D. Friedman

Articles

For the most part, the Supreme Court's decisions in 1932 and 1933 disappointed liberals. The two swing Justices, Chief Justice Charles Evans Hughes and Justice Owen J. Roberts, seemed to have sided more with the Court's four conservatives than with its three liberals. Between early 1934 and early 1935, however, the Court issued three thunderbolt decisions, all by five-to-four votes on the liberal side and with either Hughes or Roberts writing for the majority over the dissent of the conservative foursome: in January 1934, Home Building & Loan Ass'n v. Blaisdell' severely limited the extent to which the Contracts Clause …

A Reaffirmation: The Authenticity Of The Roberts Memorandum, Or Felix The Non-Forger (Justices Felix Frankfurter And Owen J. Roberts), Richard D. Friedman

Articles

In the December 1955 issue of this Law Review, Justice Felix Frankfurter published a tribute to his late friend and colleague, Owen J. Roberts.' The tribute centered on what Frankfurter claimed was the text of a memorandum that Roberts wrote in 1945 to explain his conduct in the critical minimum wage cases of 1936 and 1937, Morehead v. New York ex rel. Tipaldo2 and West Coast Hotel Co. v. Parrish.' Scholars have often challenged the adequacy of Roberts's account of why he cast decisive votes for the conservatives in Tipaldo and for the liberals in West Coast Hotel.4 Until recently, …

Of Laws And Men: An Essay On Justice Marshall's View Of Criminal Procedure, Daniel C. Richman, Bruce A. Green

Faculty Scholarship

As a general rule, criminal defendants whose cases made it to the Supreme Court between 1967 and 1991 must have thought that, as long as Justice Thurgood Marshall occupied one of the nine seats, they had one vote for sure. And Justice Marshall rarely disappointed them – certainly not in cases of any broad constitutional significance. From his votes and opinions, particularly his dissents, many were quick to conclude that the Justice was another of those "bleeding heart liberals," hostile to the mission of law enforcement officers and ready to overlook the gravity of the crimes of which the defendants …

Taxation Of Punitive Damages Obtained In A Personal Injury Claim, Douglas A. Kahn

Articles

The author explains that in recent court opinions and commentaries concerning whether punitive damages are taxable, considerable weight has been given to a negative inference that appears to lurk in a 1989 amendment to the relevant code provision, section 104(a)(2). To the contrary, he argues, the legislative history of that amendment and the form that the bill had when it was reported out of the Conference Committee establish beyond doubt that no such inference is warranted.

Chief Justice Rehnquist, Pluralist Theory, And The Interpretation Of Statutes, Thomas W. Merrill

Faculty Scholarship

Chief Justice William H. Rehnquist is often viewed as the ultimate "political" judge. According to Mark Tushnet, for example, "[o]ne could account for perhaps ninety percent of Chief Justice Rehnquist' s bottom-line results by looking, not at anything in the United States Reports, but rather at the platforms of the Republican Party." Nowhere is this attitude more prevalent than with respect to issues of statutory interpretation. When I informed colleagues I was working on an article about Chief Justice Rehnquist's theory of statutory interpretation, the almost universal response was: "What theory?"

Contrary to the common view that Chief Justice Rehnquist …

Divergent Strategies: Union Organizing And Alternative Dispute Resolution, Theodore J. St. Antoine

Articles

The Commission on the Future of Worker-Management Relations, the so-called "Dunlop Commission," is focusing on three principal subjects: (1) union organizing, (2) worker participation in management decision making, and (3) alternative dispute resolution (ADR). I am going to concentrate on the last, but first I would like to say a few words about union organizing. After all, unionization and collective bargaining - and for that matter, worker participation as well - can fairly be viewed as special forms of alternative dispute resolution.