Law Commons^™

Social Media Accountability For Terrorist Propaganda, Alexander Tsesis

Faculty Publications & Other Works

Terrorist organizations have found social media websites to be invaluable for disseminating ideology, recruiting terrorists, and planning operations. National and international leaders have repeatedly pointed out the dangers terrorists pose to ordinary people and state institutions. In the United States, the federal Communications Decency Act's § 230 provides social networking websites with immunity against civil law suits. Litigants have therefore been unsuccessful in obtaining redress against internet companies who host or disseminate third-party terrorist content. This Article demonstrates that § 230 does not bar private parties from recovery if they can prove that a social media company had received complaints …

Our Prescriptive Judicial Power: Constitutive And Entrenchment Effects Of Historical Practice In Federal Courts Law, Ernest A. Young

William & Mary Law Review

Scholars examining the use of historical practice in constitutional adjudication have focused on a few high-profile separation of powers disputes, such as the recent decisions in NLRB v. Noel Canning and Zivotofsky v. Kerry. This Article argues that “big cases make bad theory”—that the focus on high-profile cases of this type distorts our understanding of how historical practice figures into constitutional adjudication more generally. I shift focus here to the more prosaic terrain of federal courts law, where practice plays a pervasive role. That shift reveals two important insights: First, while historical practice plays an important constitutive role structuring and …

Interest And Irritation: Brown V. Maryland And The Making Of A National Economy, Henry P. Callegary

Legal History Publications

This paper examines the United States Supreme Court case Brown v. Maryland, 25 U.S. (12 Wheat.) 419 (1827), which struck down Maryland’s licensing fee on wholesalers of imported goods. In doing so, the Court reaffirmed its commitment to a national economic policy, instead of a state-centric system. This paper explores the context of the decision, including profiles of the parties involved, the attorneys for both sides, the lower court decisions, and the majority opinion and dissent from the United States Supreme Court. Additionally, this paper follows the lineage of the case through to the present day, examining its doctrinal impact …

Exploiting Ambiguity In The Supreme Court: Cutting Through The Fifth Amendment With Transferable Development Rights, Trevor D. Vincent

William & Mary Law Review

No abstract provided.

Intrastate Federalism, Rick Su

Journal Articles

In debates about the role of federalism in America, much turns on the differences between states. But what about divisions within states? The site of political conflict in America is shifting: battles once marked by interstate conflict at the national level are increasingly reflected in intrastate clashes at the local. This shift has not undermined the role of federalism in American politics, as many predicted. Rather, federalism's role has evolved to encompass the growing divide within states and between localities. In other words, federalism disputes — formally structured as between the federal government and the states — are increasingly being …

Good Ole Rocky Top: Rocky Top Tennessee, Brian Krumm

Scholarly Works

No abstract provided.

Disaggregating Corpus Christi: The Illiberal Implications Of Hobby Lobby's Right To Free Exercise, Katharine Jackson

Katharine Jackson

This paper first examines and critiques the group rights to religious exercise derived from the three ontologies of the corporation suggested by different legal conceptions of corporate personhood often invoked by Courts. Finding the implicated groups rights inimical to individual religious freedom, the paper then presents an argument as to why a discourse of intra-corporate toleration and voluntariness does a better job at protecting religious liberty.

Lgbt Rights And The Mini Rfra: A Return To Separate But Equal, Danielle Weatherby, Terri R. Day

Danielle Weatherby

Compensation For Takings: An Economic Analysis, Lawrence Blume, Daniel L. Rubinfeld

Daniel L. Rubinfeld

Analyzes the provisions of the fifth amendment of the U.S. Constitution related to the regulatory takings and just compensation for private properties in the 1980s. Decision on the supreme court case Pennsylvania Coal Co. v. Mahon; Regulation of lower courts on regulatory takings; Provisions on compensation as insurance against regulatory takings.

The Categorical Approach To Protecting Speech In American Constitutional Law, Daniel A. Farber

Daniel A Farber

No abstract provided.

Gender In The Military: Androcentrism And Institutional Reform, Kathryn Abrams

Kathryn Abrams

Discusses androcentrism and institutional reform in the military. Need to expose androcentism as a strategy for change; Courts' deference toward military policy.

Book Review Of Constitutional Personae, Michael N. Umberger

Library Staff Publications

No abstract provided.

Tiers Of Scrutiny In A Hierarchical Judiciary, Tara Leigh Grove

Faculty Publications

No abstract provided.

Implementing Enumeration, Andrew Coan

William & Mary Law Review

The enumeration of legislative powers in Article I of the U.S. Constitution implies that those powers must have limits. This familiar “enumeration principle” has deep roots in American constitutional history and has played a central role in recent federalism decisions of the U.S. Supreme Court. Courts and commentators, however, have seldom rigorously considered what follows from embracing it. The answer is by no means straightforward. The enumeration principle tells us that federal power must be subject to some limit, but it does not tell us what that limit should be. Nor does it tell us how the Constitution’s commitment to …

A Problem Of Standards?: Another Perspective On Secret Law, Jonathan Hafetz

William & Mary Law Review

This Article provides a new perspective on the growth of secret law in the United States. It is widely assumed that the U.S. government’s exercise of national security powers suffers from excessive secrecy. Although secrecy presents significant challenges, it does not alone explain the lack of clarity surrounding the government’s legal justifications for using military force, conducting surveillance, or exercising other national security powers. The Article argues that what is often labeled “secret law” may also be understood as a consequence of how legal standards are used in this context.

The Article draws on the larger rules versus standards literature …

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 …

Fourth Amendment Remedies As Rights: The Warrant Requirement, David Gray

David C. Gray

The constitutional status of the warrant requirement is hotly debated. Critics argue that neither the text nor history of the Fourth Amendment support a warrant requirement. Also questioned is the warrant requirement’s ability to protect Fourth Amendment interests. Perhaps in response to these concerns, the Court has steadily degraded the warrant requirement through a series of widening exceptions. The result is an unsatisfying jurisprudence that fails on both conceptual and practical grounds.

These debates have gained new salience with the emergence of modern surveillance technologies such as stingrays, GPS tracking, drones, and Big Data. Although a majority of the Court …

End To End Encryption, The Wrong End, Amitai Etzioni

South Carolina Law Review

No abstract provided.

James Wilson And The Moral Foundations Of Popular Sovereignty, Ian C. Bartrum

Ian C Bartrum

This paper explores the moral philosophy underlying the constitutional doctrine of popular sovereignty. In particular, it focuses on the Scottish sentimentalism that informed James Wilson’s understanding of that doctrine. Wilson, a transplanted Scotsman, was perhaps the nation’s preeminent lawyer in the middle 1780s. He was one of the most important delegates to the Constitutional Convention, one of the nation’s first law professors, and served as Associate Justice on the first Supreme Court. In these capacities, he developed the most sophisticated and coherent account of popular sovereignty among the founding generation. My initial effort is to enrich our understanding of Wilson’s …

The Right To Silence V. The Fifth Amendment, Tracey Maclin

Faculty Scholarship

This paper concerns a well-known, but badly misunderstood, constitutional right. The Fifth Amendment to the Constitution guarantees, inter alia, that no person “shall be compelled in any criminal case to be a witness against himself.” For the non-lawyer, the Fifth Amendment protects an individual’s right to silence. Many Americans believe that the Constitution protects their right to remain silent when questioned by police officers or governmental officials. Three rulings from the Supreme Court over the past twelve years, Chavez v. Martinez (2003), Berghuis v. Thomkpins (2010) and Salinas v. Texas (2013), however, demonstrate that the “right to remain silent” that …

Stanley V. Illinois’S Untold Story, Josh Gupta-Kagan

William & Mary Bill of Rights Journal

Stanley v. Illinois is one of the Supreme Court’s more curious landmark cases. The holding is well known: the Due Process Clause both prohibits states from removing children from the care of unwed fathers simply because they are not married and requires states to provide all parents with a hearing on their fitness. By recognizing strong due process protections for parents’ rights, Stanley reaffirmed Lochner-era cases that had been in doubt and formed the foundation of modern constitutional family law. But Peter Stanley never raised due process arguments, so it has long been unclear how the Court reached this decision. …

Attorney’S Fees, Nominal Damages, And Section 1983 Litigation, Thomas A. Eaton, Michael L. Wells

William & Mary Bill of Rights Journal

Can plaintiffs recover attorney’s fees under 42 U.S.C. § 1988 when they establish constitutional violations but recover only nominal damages or low compensatory damages? Some federal appellate courts have concluded that no fee, or a severely reduced fee, should be awarded in such circumstances. This position, which we call the “low award, low fee” approach, rests primarily on the Supreme Court’s 1992 opinion in Farrar v. Hobby.

We argue that a “low award, low fee” approach is misguided for two main reasons. First, the majority opinion in Farrar is fragmented, and the factual record is opaque regarding what and how …

Congressional Papers And Judicial Subpoenas And The Constitution, David H. Kaye

David Kaye

Some contemporary Congresses have lost sight of the original scope of their predecessors' assertions of privilege and now claim an absolute privilege to withhold both the originals and copies of subpoenaed papers. A few judicial opinions suggest as much or more. It is possible that even cursorily documented, ill-considered dicta can take root and flourish, and to prevent that, this article This article charts the constitutional boundaries of Congress' privilege to withhold its internal papers from judicial subpoena. It surveys the privileges expressly given Congress in the text of the Constitution as well as the privileges that might be implied …

What Should Law Enforcement Role Be In Addressing Quality Of Life Issues Associated With Section 8 Housing?, D'Andre D. Lampkin

D'Andre Devon Lampkin

The purpose of this research project is to discuss the challenges law enforcement face when attempting to address quality of life issues for residents residing in and around Section 8 federal housing. The paper introduces readers to the purpose of Section 8 housing, the process in which residents choose subsidized housing, and the legal challenges presented when law enforcement agencies are assisting city government to address quality of life issues. For purposes of this research project, studies were sampled to illustrate where law enforcement participation worked and where law enforcement participation leads to unintended legal ramifications.

Constitutional Theory In A Nutshell, Thomas E. Baker

Thomas E. Baker

No abstract provided.

The Administrative Constitution In Exile, Mila Sohoni

William & Mary Law Review

For decades, the aspiration of administrative law has been to develop legal structures that would constrain and legitimate the exercise of agency power. The fruition of that hope was the complex internal blueprint that has made modern administrative governance both successful and legitimate the framework for executive action that many have hailed as the administrative constitution. Today, however, novel exercises of administrative power are crowding out old and familiar varieties, making the conventional forms of administrative action less and less relevant to the conduct of government.

This Article examines how the administrative constitution has changed over time and how that …

A Constitutional Bibliography, Thomas E. Baker

Thomas E. Baker

No abstract provided.

The First Amendment And The World, Timothy Zick

Popular Media

No abstract provided.

City Of Fernley V. State, Dep’T Of Tax, 132 Nev. Adv. Op. 4 (January 14, 2016), Daniel Ormsby

Nevada Supreme Court Summaries

The Court determined that the Local Government Tax Distribution Account under NRS § 330.660 was general legislation, survived rational basis scrutiny, and therefore was not unconstitutional under Article 4, Sections 20 and 21 of the Nevada Constitution.

The Real Homeland Security Gaps, Areto A. Imoukuede

Journal Publications

This Article reveals the real security gaps in FPS and suggests that the enormous delegation of FPS's vital security functions to private contractors should be treated as an unconstitutional delegation of an inherently governmental function. However, the current constitutional doctrine regarding inherently governmental functions is so weak that even this obvious example of a vital security function that ought to be performed by government fails to satisfy the current constitutional standard for being inherently governmental. Part II presents the FPS federal infrastructure mission and the real homeland security gaps created by post 9/11 policies that have undermined FPS security capabilities. …