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Constitutional Law

William & Mary Law Review

Journal

Due Process of Law

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Full-Text Articles in Law

Jury Bias Resulting In Indefinite Commitment: Expanding Procedural Protections In Svp Civil Commitment Proceedings Under The Mathews Test, Alli M. Mentch May 2021

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 Nov 2020

Force-Feeding Pretrial Detainees: A Constitutional Violation, Bryn L. Clegg

William & Mary Law Review

No abstract provided.


No Arbitrary Power: An Originalist Theory Of The Due Process Of Law, Randy E. Barnett, Evan D. Bernick Apr 2019

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 …


Premodern Constitutionalism, Martin H. Redish, Matthew Heins Apr 2016

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 …


The Real Constitutional Problem With State Judicial Selection: Due Process, Judicial Retention, And The Dangers Of Popular Constitutionalism, Martin H. Redish, Jennifer Aronoff Oct 2014

The Real Constitutional Problem With State Judicial Selection: Due Process, Judicial Retention, And The Dangers Of Popular Constitutionalism, Martin H. Redish, Jennifer Aronoff

William & Mary Law Review

In Caperton v. A.T. Massey Coal Co., decided in 2009, the Supreme Court held for the first time that conduct related to a judicial election campaign violated a litigant’s right to procedural due process because the opposing litigant had contributed an inordinate amount of money to the campaign of one of the justices ruling on the case. The due process danger recognized in Caperton rests on a fear of retrospective gratitude—that is, the fear that the Justice would decide his contributor’s case differently because he was grateful for the litigant’s generous support. The Court’s focus on retrospective gratitude is …


Knowledge Is Power: The Fundamental Right To Record Present Observations In Public, Travis Gunn Mar 2013

Knowledge Is Power: The Fundamental Right To Record Present Observations In Public, Travis Gunn

William & Mary Law Review

No abstract provided.


Valid Rule Due Process Challenges: Bond V. United States And Erie's Constitutional Source, Kermit Roosevelt Iii Feb 2013

Valid Rule Due Process Challenges: Bond V. United States And Erie's Constitutional Source, Kermit Roosevelt Iii

William & Mary Law Review

No abstract provided.


A General Theory Of Governance: Due Process And Lawmaking Power, Louise Weinberg Feb 2013

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 …


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 Dec 2009

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.


Political Judging: When Due Process Goes International, Montré D. Carodine Mar 2007

Political Judging: When Due Process Goes International, Montré D. Carodine

William & Mary Law Review

The Supreme Court's recent reliance on foreign precedent to interpret the Constitution sparked a firestorm of criticism and spawned a rich debate regarding the extent to which U.S. courts should defer to foreign law when developing U.S. constitutional norms. This Article looks at a subset of the issue of deference to foreign law and international influences in judicial decision making: the extent to which our courts should apply American notions of due process in determining whether to recognize and enforce judgments obtained abroad. Courts reviewing foreign judgments to determine whether they areworthy of recognition have created an "international due process"analysis. …


Dumbo's Feather: An Examination And Critque Of The Supreme Court's Use, Misuse, And Abuse Of Tradition In Protecting Fundamental Rights, Ronald J. Krotoszynski Jr. Dec 2006

Dumbo's Feather: An Examination And Critque Of The Supreme Court's Use, Misuse, And Abuse Of Tradition In Protecting Fundamental Rights, Ronald J. Krotoszynski Jr.

William & Mary Law Review

The Justices of the Supreme Court have a great deal in common with the gifted pachyderm from the Walt Disney animated classic feature Dumbo. Like Dumbo's "magic" feather that purportedly enabled him to exercise his natural ability to fly, the tradition limitation on the Court's jurisprudence on unenumerated fundamental constitutional rights provides a more-apparent-than real constraint on the Court's almost unlimited ability to nullify legislative and executive action. In all too many substantive due process cases, reason seems to follow a predetermined result, rather than the result in the case following from the applicable governing principles. In this Article, Professor …


Banging On The Backdoor Draft: The Constitutional Validity Of Stop-Loss In The Military, Evan M. Wooten Dec 2005

Banging On The Backdoor Draft: The Constitutional Validity Of Stop-Loss In The Military, Evan M. Wooten

William & Mary Law Review

No abstract provided.


Procedural Justice: Tempering The State's Response To Domestic Violence, Deborah Epstein Apr 2002

Procedural Justice: Tempering The State's Response To Domestic Violence, Deborah Epstein

William & Mary Law Review

No abstract provided.


Will, Judgment, And Economic Liberty: Mr. Justice Souter And The Mistranslation Of The Due Process Clause, Alan J. Meese Dec 1999

Will, Judgment, And Economic Liberty: Mr. Justice Souter And The Mistranslation Of The Due Process Clause, Alan J. Meese

William & Mary Law Review

No abstract provided.


Lochner, Parity, And The Chinese Laundry Cases, David E. Bernstein Dec 1999

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 Dec 1999

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 Dec 1999

The Inevitable Infidelities Of Constitutional Translation: The Case Of The New Deal, John O. Mcginnis

William & Mary Law Review

No abstract provided.


Fidelity, Basic Liberties, And The Specter Of Lochner, James E. Fleming Dec 1999

Fidelity, Basic Liberties, And The Specter Of Lochner, James E. Fleming

William & Mary Law Review

No abstract provided.


Introduction: Fidelity, Economic Liberty, And 1937, Editors Of The William And Mary Law Review Dec 1999

Introduction: Fidelity, Economic Liberty, And 1937, Editors Of The William And Mary Law Review

William & Mary Law Review

No abstract provided.


The Fragmented Liberty Clause, Rebecca L. Brown Dec 1999

The Fragmented Liberty Clause, Rebecca L. Brown

William & Mary Law Review

No abstract provided.


Lost Fidelities, Barry Cushman Dec 1999

Lost Fidelities, Barry Cushman

William & Mary Law Review

No abstract provided.


Who Decides If There Is "Triumph In The Ultimate Agony?" Constitutional Theory And The Emerging Right To Die With Dignity, Brian C. Goebel Feb 1996

Who Decides If There Is "Triumph In The Ultimate Agony?" Constitutional Theory And The Emerging Right To Die With Dignity, Brian C. Goebel

William & Mary Law Review

No abstract provided.


Separation Of Powers And The Limits Of Independence, Richard J. Pierce Jr. Feb 1989

Separation Of Powers And The Limits Of Independence, Richard J. Pierce Jr.

William & Mary Law Review

No abstract provided.