Law Commons^™

Warning: Stop-And-Frisk May Be Hazardous To Your Health, Josephine Ross

William & Mary Bill of Rights Journal

No abstract provided.

The Flawed Reasoning Behind Johnson V. United States And A Solution: Why A Facts-Based Approach Should Have Been Used To Interpret The Residual Clause Of The Armed Career Criminal Act, Jake Albert

William & Mary Bill of Rights Journal

No abstract provided.

The Lawfulness Of The Same-Sex Marriage Decisions: Charles Black On Obergefell, Toni M. Massaro

William & Mary Bill of Rights Journal

No abstract provided.

Real Bite: Legal Realism And Meaningful Rational Basis In Dog Law And Beyond, Ann L. Schiavone

William & Mary Bill of Rights Journal

No abstract provided.

The Most Loved, Most Hated Magazine In America: The Rise And Demise Of Confidential Magazine, Samantha Barbas

William & Mary Bill of Rights Journal

No abstract provided.

Is The “Arising Under” Jurisdictional Grant In Article Iii Self-Executing?, David R. Dow

William & Mary Bill of Rights Journal

No abstract provided.

Deconstructing Juryless Fact-Finding In Civil Cases, Shaakirrah R. Sanders

William & Mary Bill of Rights Journal

In many states, legislatures have mandated juryless fact-finding in common law–based civil cases by imposing compensatory damage caps that effectively lessen the jury’s traditional and historic role as injury valuator. The primary purpose of most caps was to reign in “excessive” civil jury verdicts, which allegedly caused “skyrocketing” medical malpractice insurance premiums and litigation costs. But no legislatively imposed cap is triggered by a preliminary finding of excessiveness. Trial judges have no authority to determine whether application of a cap is just or fair to the (often) severely injured plaintiff. Despite a shared interpretive methodology with regards to the nature …

But First, (Don’T) Let Me Take A Selfie: New Hampshire’S Ban On Ballot Selfies And First Amendment Scrutiny, Emily Wagman

William & Mary Bill of Rights Journal

No abstract provided.

Forging Ahead From Ferguson: Re-Evaluating The Right To Assemble In The Face Of Police Militarization, Ashley M. Eick

William & Mary Bill of Rights Journal

No abstract provided.

The Lesser Of Two Evils: Exploring The Constitutionality Of Indefinite Detentions Of Terror Enemy Combatants Following The End Of “Combat Operations” In Afghanistan, Justin A. Thatch

William & Mary Bill of Rights Journal

No abstract provided.

Due Process As Choice Of Law: A Study In The History Of A Judicial Doctrine, Matthew J. Steilen

William & Mary Bill of Rights Journal

This Article argues that procedural due process can be understood as a choice of-law doctrine. Many procedural due process cases require courts to choose between a procedural regime characteristic of the common law—personal notice, oral hearing, neutral judge, and jury trial—and summary procedures employed in administrative agencies.

This way of thinking about procedural due process is at odds with the current balancing test associated with the Supreme Court’s opinion in Mathews v. Eldridge. This Article aims to show, however, that it is consistent with case law over a much longer period, indeed, most of American history. It begins with a …

Confrontation As A Rule Of Production, Pamela R. Metzger

William & Mary Bill of Rights Journal

No abstract provided.

Fissures, Fractures & Doctrinal Drifts: Paying The Price In First Amendment Jurisprudence For A Half Decade Of Avoidance, Minimalism & Partisanship, Clay Calvert, Matthew D. Bunker

William & Mary Bill of Rights Journal

This Article comprehensively examines how the U.S. Supreme Court’s adherence to principles of constitutional avoidance and judicial minimalism, along with partisan rifts among the Justices, have detrimentally affected multiple First Amendment doctrines over the past five years. The doctrines analyzed here include true threats, broadcast indecency, offensive expression, government speech, and strict scrutiny, as well as the fundamental dichotomy between content-based and contentneutral regulations.

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. …

Implications On The Constitutionality Of Student Cell Phone Searches Following Riley V. California, Ross Hoogstraten

William & Mary Bill of Rights Journal

No abstract provided.

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 …