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Articles 1 - 30 of 33
Full-Text Articles in Law
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 …
Spandrel Or Frankenstein's Monster? The Vices And Virtues Of Retrofitting In American Law, Michael C. Dorf
Spandrel Or Frankenstein's Monster? The Vices And Virtues Of Retrofitting In American Law, Michael C. Dorf
William & Mary Law Review
No abstract provided.
Commentary On Marriage Grants: Article Iii & Same-Sex Marriage, Neal Devins, Tara Leigh Grove
Commentary On Marriage Grants: Article Iii & Same-Sex Marriage, Neal Devins, Tara Leigh Grove
Popular Media
No abstract provided.
The Transformation Of Immigration Federalism, Jennifer M. Chacón
The Transformation Of Immigration Federalism, Jennifer M. Chacón
William & Mary Bill of Rights Journal
No abstract provided.
A Clarification Of The Constitution's Application Abroad: Making The "Impracticable And Anomalous" Standard More Practicable And Less Anomalous, Jesse Merriam
William & Mary Bill of Rights Journal
No abstract provided.
Creating Hammer V. Dagenhart, Logan E. Sawyer Iii
Creating Hammer V. Dagenhart, Logan E. Sawyer Iii
William & Mary Bill of Rights Journal
No abstract provided.
Texting While Driving Meets The Fourth Amendment: Deterring Both Texting And Warrantless Cell Phone Searches, Adam M. Gershowitz
Texting While Driving Meets The Fourth Amendment: Deterring Both Texting And Warrantless Cell Phone Searches, Adam M. Gershowitz
Faculty Publications
Recent laws criminalizing texting while driving are under-inclusive, ambiguous, and impose light punishments that are unlikely to deter. At the same time, the laws empower police to conduct warrantless searches of drivers’ cell phones. Texting while driving is dangerous and should be punished with stiff fines, possible jail time, license suspensions, and interlock devices that prevent use of phones while driving. However, more severe punishment will not eliminate police authority to conduct warrantless cell phone searches. This Article therefore proposes that legislatures allow drivers to immediately confess to texting while driving in exchange for avoiding a search of their phones. …
Democratic Inclusion, Cognitive Development, And The Age Of Electoral Majority, Vivian E. Hamilton
Democratic Inclusion, Cognitive Development, And The Age Of Electoral Majority, Vivian E. Hamilton
Faculty Publications
No abstract provided.
Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel
Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel
William & Mary Law Review
More than four decades have passed since the U.S. Supreme Court revolutionized the First Amendment rights of the public workforce. In the ensuing years the Court has embarked upon an ambitious quest to protect expressive liberties while facilitating orderly and efficient government. Yet it has never articulated an adequate theoretical framework to guide its jurisprudence.
This Article suggests a conceptual reorientation of the modern doctrine. The proposal flows naturally from the Court’s rejection of its former view that one who accepts a government job has no constitutional right to complain about its conditions. As a result of that rejection, the …
"Worse Than The Disease": The Anti-Corruption Principle, Free Expression, And The Democratic Process, Martin H. Redish, Elana Nightingale Dawson
"Worse Than The Disease": The Anti-Corruption Principle, Free Expression, And The Democratic Process, Martin H. Redish, Elana Nightingale Dawson
William & Mary Bill of Rights Journal
No abstract provided.
Distorting Democracy: Campaign Lies In The 21st Century, Gerald G. Ashdown
Distorting Democracy: Campaign Lies In The 21st Century, Gerald G. Ashdown
William & Mary Bill of Rights Journal
No abstract provided.
The Role Of Causation When Determining The Proper Defendant In A Takings Lawsuit, Jan G. Laitos
The Role Of Causation When Determining The Proper Defendant In A Takings Lawsuit, Jan G. Laitos
William & Mary Bill of Rights Journal
No abstract provided.
"Property" In The Constitution: The View From The Third Amendment, Tom W. Bell
"Property" In The Constitution: The View From The Third Amendment, Tom W. Bell
William & Mary Bill of Rights Journal
During World War II, after Japan attacked the Aleutian Islands off Alaska’s coast, the United States forcibly evacuated the islands’ natives and quartered soldiers in private homes. That hitherto unremarked violation of the Third Amendment gives us a fresh perspective on what the term “property” means in the United States Constitution. As a general legal matter, property includes not just real estate—land, fixtures attached thereto, and related rights—but also various kinds of personal property, ranging from tangibles, such as books, to intangibles, such as causes of action. That knowledge would, if we interpreted the Constitution as we do other legal …
Unintentional Levels Of Force In §1983 Excessive Force Claims, Nathan R. Pittman
Unintentional Levels Of Force In §1983 Excessive Force Claims, Nathan R. Pittman
William & Mary Law Review
No abstract provided.
Legal Scholarship Highlight: Confronting Supreme Court Fact Finding, Allison Orr Larsen
Legal Scholarship Highlight: Confronting Supreme Court Fact Finding, Allison Orr Larsen
Popular Media
No abstract provided.
A (Modest) Separation Of Powers Success Story, Tara Leigh Grove
A (Modest) Separation Of Powers Success Story, Tara Leigh Grove
Faculty Publications
No abstract provided.
The Indefensible Duty To Defend, Neal Devins, Saikrishna B. Prakash
The Indefensible Duty To Defend, Neal Devins, Saikrishna B. Prakash
Faculty Publications
Modern Justice Department opinions insist that the executive branch must enforce and defend laws. In the first article to systematically examine Department of Justice refusals to defend, we make four points. First, the duties to enforce and defend lack any sound basis in the Constitution. Hence, while President Obama is right to refuse to defend the Defense of Marriage Act, he is wrong to continue to enforce a law he believes is unconstitutional. Second, rather than being grounded in the Constitution, the duties are better explained by the Department of Justice’s (DOJ) desire to enhance its independence and status. By …
Our Federalism(S), Heather K. Gerken
Release As Remedy For Excessive Punishment, Alexander A. Reinert
Release As Remedy For Excessive Punishment, Alexander A. Reinert
William & Mary Law Review
Although the Eighth Amendment’s prohibition on “cruel and unusual” punishment means different things in different contexts, it plainly forecloses state and federal actors from choosing ex ante to impose a punishment that is either disproportionate or inconsistent with minimum standards of decency. In other words, the Eighth Amendment mandates that no punishment be imposed if the only other choice on the table is an unconstitutional punishment. Although this principle can be gleaned from the disparate strands of Eighth Amendment jurisprudence, its remedial consequence has not been fully implemented. In this Article, I propose that providing a remedy of release from …
Katz Cradle: Holding On To Fourth Amendment Parity In An Age Of Evolving Electronic Communication, Christopher R. Brennan
Katz Cradle: Holding On To Fourth Amendment Parity In An Age Of Evolving Electronic Communication, Christopher R. Brennan
William & Mary Law Review
No abstract provided.
An Unusual Separation Of Power Episode: Samantar V. Yousuf And The Need For The Executive Branch To Assert Control Over Foreign Official Sovereign Immunity Determinations, Laura Manns
William & Mary Bill of Rights Journal
No abstract provided.
Hugo Black's Vision Of The Lawyer, The First Amendment, And The Duty Of The Judiciary: The Bar Applicant Cases In A National Security State, Joshua E. Kastenberg
Hugo Black's Vision Of The Lawyer, The First Amendment, And The Duty Of The Judiciary: The Bar Applicant Cases In A National Security State, Joshua E. Kastenberg
William & Mary Bill of Rights Journal
No abstract provided.
The "Flesh And Blood" Defense, James Erickson Evans
The "Flesh And Blood" Defense, James Erickson Evans
William & Mary Law Review
No abstract provided.
The Article Ii Safeguards Of Federal Jurisdiction, Tara Leigh Grove
The Article Ii Safeguards Of Federal Jurisdiction, Tara Leigh Grove
Faculty Publications
Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary. Scholars have thus overlooked the important (and surprising) role that the executive branch has played in these jurisdictional struggles. This Article seeks to fill that void. Drawing on two strands of social science research, the Article argues that the executive branch has a strong incentive to use its constitutional authority over the enactment and enforcement of federal law to oppose jurisdiction-stripping measures. Notably, this structural argument has considerable historical support. The executive branch has repeatedly opposed jurisdiction-stripping proposals in Congress. That has been true even …
Looking Back At Cohen V. California: A 40 Year Retrospective From Inside The Court, Thomas G. Krattenmaker
Looking Back At Cohen V. California: A 40 Year Retrospective From Inside The Court, Thomas G. Krattenmaker
William & Mary Bill of Rights Journal
No abstract provided.
Kiss The Book...You're President...: "So Help Me God" And Kissing The Book In The Presidential Oath Of Office, Frederick B. Jonassen
Kiss The Book...You're President...: "So Help Me God" And Kissing The Book In The Presidential Oath Of Office, Frederick B. Jonassen
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
"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.
Teens, Sexts, & Cyberspace: The Constitutional Implications Of Current Sexting & Cyberbullying Laws, Jamie L. Williams
Teens, Sexts, & Cyberspace: The Constitutional Implications Of Current Sexting & Cyberbullying Laws, Jamie L. Williams
William & Mary Bill of Rights Journal
No abstract provided.
Interpretive Contestation And Legal Correctness, Matthew D. Adler
Interpretive Contestation And Legal Correctness, Matthew D. Adler
William & Mary Law Review
No abstract provided.
The Role Of Charity In A Federal System, Brian Galle
The Role Of Charity In A Federal System, Brian Galle
William & Mary Law Review
This Article critiques the prevailing justification for subsidies for the charitable sector and suggests a new alternative. Existing rationales are based on an economic model that assumes a single government whose decisions are guided by a single median voter. I argue that this theory is unpersuasive when translated to federal systems, such as the United States, in which there may instead be thousands of competing local governments.
I then attempt to construct a theory of the charitable sector that takes account of interactions between charity, local government, and national government. In this revised account, charity is most important when federalism …