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Articles 1 - 30 of 33
Full-Text Articles in Fourteenth Amendment
Jury Bias Resulting In Indefinite Commitment: Expanding Procedural Protections In Svp Civil Commitment Proceedings Under The Mathews Test, Alli M. Mentch
Jury Bias Resulting In Indefinite Commitment: Expanding Procedural Protections In Svp Civil Commitment Proceedings Under The Mathews Test, Alli M. Mentch
William & Mary Law Review
Twenty states, the District of Columbia, and the federal government have enacted Sexually Violent Predator (SVP) laws that permit the civil commitment of sex offenders. Under these laws, imprisoned sex offenders serving criminal sentences are transferred to treatment facilities and held indefinitely. As one individual describes civil commitment, “It’s worse than prison. In prison I wasn’t happy, but I was content because I knew I had a release date.” An estimated 5,400 individuals are currently civilly committed under these laws.
This Note argues that such laws do not adequately protect respondents’ due process rights. To that end, this Note proposes …
Force-Feeding Pretrial Detainees: A Constitutional Violation, Bryn L. Clegg
Force-Feeding Pretrial Detainees: A Constitutional Violation, Bryn L. Clegg
William & Mary Law Review
No abstract provided.
The Epistemic Function Of Fusing Equal Protection And Due Process, Deborah Hellman
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 …
The Forgotten Relatives In The Fight Against Family Separation: A Constitutional Analysis Of The Statutory Definition Of Unaccompanied Minors In Immigration Detention, Alysa Williams
William & Mary Journal of Race, Gender, and Social Justice
No abstract provided.
First Amendment Lochnerism & The Origins Of The Incorporation Doctrine, James Y. Stern
First Amendment Lochnerism & The Origins Of The Incorporation Doctrine, James Y. Stern
Faculty Publications
The 20th century emergence of the incorporation doctrine is regarded as a critical development in constitutional law, but while issues related to the doctrine's justification have been studied and debated for more than fifty years, the causes and mechanics of its advent have received relatively little academic attention. This Essay, part of a symposium on Judge Jeffrey Sutton's recent book about state constitutional law, examines the doctrinal origins of incorporation, in an effort to help uncover why the incorporation doctrine emerged when it did and the way it did. It concludes that, for these purposes, incorporation is best understood as …
No Arbitrary Power: An Originalist Theory Of The Due Process Of Law, Randy E. Barnett, Evan D. Bernick
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 and …
Highway Robbery: Due Process, Equal Protection, And Punishing Poverty With Driver’S License Suspensions, Thomas Capretta
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.
The Lawfulness Of The Same-Sex Marriage Decisions: Charles Black On Obergefell, Toni M. Massaro
The Lawfulness Of The Same-Sex Marriage Decisions: Charles Black On Obergefell, Toni M. Massaro
William & Mary Bill of Rights Journal
No abstract provided.
Historically Unappealing: Boumediene V. Bush, Appellate Avoidance Mechanisms, And Black Holes Extending Beyond Guantanamo Bay, Dennis Schmelzer
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.
Whither Sexual Orientation Analysis?: The Proper Methodology When Due Process And Equal Protection Intersect, Sharon E. Rush
Whither Sexual Orientation Analysis?: The Proper Methodology When Due Process And Equal Protection Intersect, Sharon E. Rush
Sharon E. Rush
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 …
Lost Fidelities, Barry Cushman
Knowledge Is Power: The Fundamental Right To Record Present Observations In Public, Travis Gunn
Knowledge Is Power: The Fundamental Right To Record Present Observations In Public, Travis Gunn
William & Mary Law Review
No abstract provided.
A General Theory Of Governance: Due Process And Lawmaking Power, Louise Weinberg
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 …
Valid Rule Due Process Challenges: Bond V. United States And Erie's Constitutional Source, Kermit Roosevelt Iii
Valid Rule Due Process Challenges: Bond V. United States And Erie's Constitutional Source, Kermit Roosevelt Iii
William & Mary Law Review
No abstract provided.
Dodging A Bullet: Mcdonald V. City Of Chicago And The Limits Of Progessive Originalism, Dale E. Ho
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 …
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.
The Unbearable Lightness Of Marriage In The Abortion Decisions Of The Supreme Court: Altered States In Constitutional Law, William W. Van Alstyne
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.
Whither Sexual Orientation Analysis?: The Proper Methodology When Due Process And Equal Protection Intersect, Sharon E. Rush
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 …
Is Economic Exclusion A Legitimate State Interest? Four Recent Cases Test The Boundaries, Timothy Sandefur
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
Comparative And Noncomparative Justice: Some Guidelines For Constitutional Adjudication, Raleigh Hannah Levine, Russell Pannier
William & Mary Bill of Rights Journal
No abstract provided.
Not So Landmark After All? Lawrence V. Texas: Classical Liberalism And Due Process Jurisprudence, Davin J. Hall
Not So Landmark After All? Lawrence V. Texas: Classical Liberalism And Due Process Jurisprudence, Davin J. Hall
William & Mary Bill of Rights Journal
No abstract provided.
Righteous Shooting, Unreasonable Seizure? The Relevance Of An Officer's Pre-Seizure Conduct In An Excessive Force Claim, Aaron Kimber
Righteous Shooting, Unreasonable Seizure? The Relevance Of An Officer's Pre-Seizure Conduct In An Excessive Force Claim, Aaron Kimber
William & Mary Bill of Rights Journal
No abstract provided.
Beyond Gay Rights: Lawrence V. Texas And The Promise Of Liberty, Philip Chapman
Beyond Gay Rights: Lawrence V. Texas And The Promise Of Liberty, Philip Chapman
William & Mary Bill of Rights Journal
No abstract provided.
Did The Government Finally Get It Right? An Analysis Of The Former Ins, The Office Of Refugee Resettlement And Unaccompanied Minor Aliens' Due Process Rights, Jessica G. Taverna
Did The Government Finally Get It Right? An Analysis Of The Former Ins, The Office Of Refugee Resettlement And Unaccompanied Minor Aliens' Due Process Rights, Jessica G. Taverna
William & Mary Bill of Rights Journal
No abstract provided.
Public School Officials' Use Of Physical Force As A Fourth Amendment Seizure: Protecting Students From The Constitutional Chasm Between The Fourth And Fourteenth Amendments, Kathryn R. Urbonya
Public School Officials' Use Of Physical Force As A Fourth Amendment Seizure: Protecting Students From The Constitutional Chasm Between The Fourth And Fourteenth Amendments, Kathryn R. Urbonya
Faculty Publications
No abstract provided.
The Fragmented Liberty Clause, Rebecca L. Brown
The Fragmented Liberty Clause, Rebecca L. Brown
William & Mary Law Review
No abstract provided.
Lochner, Parity, And The Chinese Laundry Cases, David E. Bernstein
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
The Fiscal Powers And The 1930s: Entrenchment, John Harrison
William & Mary Law Review
No abstract provided.
The Inevitable Infidelities Of Constitutional Translation: The Case Of The New Deal, John O. Mcginnis
The Inevitable Infidelities Of Constitutional Translation: The Case Of The New Deal, John O. Mcginnis
William & Mary Law Review
No abstract provided.
Introduction: Fidelity, Economic Liberty, And 1937, Editors Of The William And Mary Law Review
Introduction: Fidelity, Economic Liberty, And 1937, Editors Of The William And Mary Law Review
William & Mary Law Review
No abstract provided.