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Articles 1 - 30 of 37
Full-Text Articles in Law
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 Constitutional Canon As Argumentative Metonymy, Ian Bartrum
The Constitutional Canon As Argumentative Metonymy, Ian Bartrum
William & Mary Bill of Rights Journal
No abstract provided.
A Promise The Nation Cannot Keep: What Prevents The Application Of The Thirteenth Amendment In Prison?, Raja Raghunath
A Promise The Nation Cannot Keep: What Prevents The Application Of The Thirteenth Amendment In Prison?, Raja Raghunath
William & Mary Bill of Rights Journal
The walls of the prison are not solely physical. The doctrine of judicial deference to prison officials, which compels courts to defer to the discretion of those officials in almost all instances, obstructs the effective scrutiny of modern practices of punishment. Since its ratification, the Thirteenth Amendment—which prohibits slavery or involuntary servitude anywhere within the United States or its jurisdiction, except where imposed “as a punishment for crime whereof the party shall have been duly convicted”1—has been seen by courts as one brick in this wall. This Article makes the novel argument that, properly read, the amendment should function instead …
Rescuing The Fourteenth Amendment Privileges Or Immunities Clause: How "Attrition Or Parliamentary Processes" Begat Accidental Ambiguity; How Ambiguity Begat Slaughter-House, Michael Anthony Lawrence
Rescuing The Fourteenth Amendment Privileges Or Immunities Clause: How "Attrition Or Parliamentary Processes" Begat Accidental Ambiguity; How Ambiguity Begat Slaughter-House, Michael Anthony Lawrence
William & Mary Bill of Rights Journal
No abstract provided.
The Bapcpa, The Gag Rule, And The First Amendment: A Proposal For Alignment Through Interpretive And Analytical Change, Cullen Ann Drescher
The Bapcpa, The Gag Rule, And The First Amendment: A Proposal For Alignment Through Interpretive And Analytical Change, Cullen Ann Drescher
William & Mary Bill of Rights Journal
No abstract provided.
Displacement, Timothy Zick
Section 5: Individual Rights, Institute Of Bill Of Rights Law, William & Mary Law School
Section 5: Individual Rights, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Randomization And Adjudication, Adam M. Samaha
Randomization And Adjudication, Adam M. Samaha
William & Mary Law Review
Flipping a coin to decide a case is among the most serious forms of judicial misconduct. Yet judges react quite differently to other types of lotteries. Judges tend to tolerate or encourage deliberately random decisions in nonjudicial settings ranging from military drafts to experimental welfare requirements. Equally striking, most adjudicators now embrace randomization within their own institutions: they commonly use lotteries to assign incoming cases to each other. This practice creates a remarkable tension. Because adjudicators vary in competence and ideology, randomizing their case assignments will effectively randomize outcomes in a subset of merits decisions. We might then ask whether …
Rethinking Women And The Constitution: An Historical Argument For Recognizing Constitutional Flexibility With Regards To Women In The New Republic, Samantha Ricci
William & Mary Journal of Race, Gender, and Social Justice
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.
Federalism, Forum Shopping, And The Foreign Injury Paradox, Elizabeth T. Lear
Federalism, Forum Shopping, And The Foreign Injury Paradox, Elizabeth T. Lear
William & Mary Law Review
This Article explores the contours of state regulatory power in the foreign injury context. The Supreme Court has long declined to question forum choice in domestic cases, apparently concluding that any other response would be inconsistent with our federalism. But move the injury offshore and the judicial deference to state regulatory supremacy evaporates. Federal judges subject forum choice in transnational tort actions to exacting scrutiny, routinely dismissing such claims on forum non conveniens grounds with no examination of the state interests at stake. This Article first considers whether the offshore nature of a foreign injury diminishes or even extinguishes traditional …
Contingent Constitutionalism: State And Local Criminal Laws And The Applicability Of Federal Constitutional Rights, Wayne A. Logan
Contingent Constitutionalism: State And Local Criminal Laws And The Applicability Of Federal Constitutional Rights, Wayne A. Logan
William & Mary Law Review
Americans have long been bound by a shared sense of constitutional commonality, and the Supreme Court has repeatedly condemned the notion that federal constitutional rights should be allowed to depend on distinct state and local legal norms. In reality, however, federal rights do indeed vary, and they do so as a result of their contingent relationship to the diversity of state and local laws on which they rely. Focusing on criminal procedure rights in particular, this Article examines the benefits and detriments of constitutional contingency, and casts in new light many enduring understandings of American constitutionalism, including the effects of …
Suspicionless Border Seizures Of Electronic Files: The Overextension Of The Border Search Exception To The Fourth Amendment, Scott J. Upright
Suspicionless Border Seizures Of Electronic Files: The Overextension Of The Border Search Exception To The Fourth Amendment, Scott J. Upright
William & Mary Law Review
No abstract provided.
Must God Be Dead Or Irrelevant: Drawing A Circle That Lets Me In, Richard M. Esenberg
Must God Be Dead Or Irrelevant: Drawing A Circle That Lets Me In, Richard M. Esenberg
William & Mary Bill of Rights Journal
Some scholars claim that current Establishment Clause doctrine can increasingly be explained in terms of substantive neutrality-that is, the idea that government ought to treat religion and irreligion (or comparable secular activities) in the same way. Whether a product of the Court's commitment to the idea or an artifact of the positions of the "swing" Justices, this proposition has considerable explanatory power. The Supreme Court has, in recent years, permitted the government to make financial support equally available for religious uses, as long as it is done on a neutral basis and through the private choice of the recipients. It …
Prisoners For Sale: Making The Thirteenth Amendment Case Against State Private Prison Contracts, Ryan S. Marion
Prisoners For Sale: Making The Thirteenth Amendment Case Against State Private Prison Contracts, Ryan S. Marion
William & Mary Bill of Rights Journal
No abstract provided.
Corruption Of Religion And The Establishment Clause, Andrew Koppelman
Corruption Of Religion And The Establishment Clause, Andrew Koppelman
William & Mary Law Review
Government neutrality toward religion is based on familiar considerations: the importance of avoiding religious conflict, alienation of religious minorities, and the danger that religious considerations will introduce a dangerous irrational dogmatism into politics and make democratic compromise more difficult. This Article explores one consideration, prominent at the time of the framing, that is often overlooked: the idea that religion can be corrupted by state involvement with it. This idea is friendly to religion but, precisely for that reason, is determined to keep the state away from religion. If the religion-protective argument for disestablishment is to be useful today, it cannot …
Guns And Speech Technologies: How The Right To Bear Arms Affects Copyright Regulations Of Speech Technologies, Edward Lee
William & Mary Bill of Rights Journal
This Article examines the possible effect the Supreme Court's landmark Second Amendment ruling in District of Columbia v. Heller will have on future cases brought under the Free Press Clause.' Based on the text and history of the Constitution, the connection between the two Clauses is undeniable, as the Heller Court itself repeatedly suggested. Only two provisions in the entire Constitution protect individual rights to a technology: the Second Amendment's right to bear "arms" and the Free Press Clause's right to the freedom of the "press," meaning the printing press. Both rights were viewed, moreover, as pre-existing, natural rights to …
Constitutional Solipsism: Toward A Thick Doctrine Of Article Iii Duty; Or Why The Federal Circuits' Nonprecedential Status Rules Are (Profoundly) Unconstitutional, Penelope Pether
William & Mary Bill of Rights Journal
No abstract provided.
The Content/Envelope Distinction In Internet Law, Matthew J. Tokson
The Content/Envelope Distinction In Internet Law, Matthew J. Tokson
William & Mary Law Review
Whether a component of an Internet communication is classified as "content" or "envelope" information determines in large part the privacy protection it receives under constitutional and statutory law. Courts and Internet law scholars have yet to offer a means of determining the content/envelope status of unique aspects of Internet communications-from email subject lines to website URLs. As a result, data with the potential to expose every website, every Internet file downloaded, and every email sent by an Internet user may be unprotected under current law.
This Article develops a legal framework for distinguishing content from envelope information in unique areas …
Clarifying Departmentalism: How The Framers' Vision Of Judicial And Presidential Review Makes The Case For Deductive Judicial Supremacy, David W. Tyler
Clarifying Departmentalism: How The Framers' Vision Of Judicial And Presidential Review Makes The Case For Deductive Judicial Supremacy, David W. Tyler
William & Mary Law Review
No abstract provided.
Religion In The Workplace: A Report On The Layers Of Relevant Law In The United States, William W. Van Alstyne
Religion In The Workplace: A Report On The Layers Of Relevant Law In The United States, William W. Van Alstyne
Faculty Publications
No abstract provided.
The Public's Domain In Trademark Law: A First Amendment Theory Of The Consumer, Laura A. Heymann
The Public's Domain In Trademark Law: A First Amendment Theory Of The Consumer, Laura A. Heymann
Faculty Publications
No abstract provided.
Presidential Unilateralism And Political Polarization: Why Today's Congress Lacks The Will And The Way To Stop Presidential Initiatives, Neal Devins
Faculty Publications
No abstract provided.
Standing As An Article Ii Nondelegation Doctrine, Tara Leigh Grove
Standing As An Article Ii Nondelegation Doctrine, Tara Leigh Grove
Faculty Publications
No abstract provided.
Leaving The Chisholm Trail: The Eleventh Amendment And The Background Principle Of Strict Construction, Kurt T. Lash
Leaving The Chisholm Trail: The Eleventh Amendment And The Background Principle Of Strict Construction, Kurt T. Lash
William & Mary Law Review
No abstract provided.
What Should Citizens (As Participants In A Republican Form Of Government) Know About The Constitution?, Sanford Levinson
What Should Citizens (As Participants In A Republican Form Of Government) Know About The Constitution?, Sanford Levinson
William & Mary Law Review
No abstract provided.
Unpleasant Speech On Campus, Even Hate Speech, Is A First Amendment Issue, Erwin Chemerinsky
Unpleasant Speech On Campus, Even Hate Speech, Is A First Amendment Issue, Erwin Chemerinsky
William & Mary Bill of Rights Journal
No abstract provided.
Making Sense Of High School Speech After Morse V. Frederick, Mark W. Cordes
Making Sense Of High School Speech After Morse V. Frederick, Mark W. Cordes
William & Mary Bill of Rights Journal
No abstract provided.
The Supreme Court’S Controversial Gvrs – And An Alternative, Aaron-Andrew P. Bruhl
The Supreme Court’S Controversial Gvrs – And An Alternative, Aaron-Andrew P. Bruhl
Faculty Publications
This Article addresses a relatively neglected portion of the Supreme Court's docket: the "GVR"-that is, the Court's procedure for summarily granting certiorari, vacating the decision below without finding error, and remanding the case for further consideration by the lower court. The purpose of the GVR device is to give the lower court the initial opportunity to consider the possible impact of a new development (such as a recently issued Supreme Court decision) and, if necessary, to revise its ruling in light of the changed circumstances. The Court may issue scores or even hundreds of these orders every year
This Article …
The Sounds Of Silence: Reconsidering The Invocation Of The Right To Remain Silent Under Miranda, Marcy Strauss
The Sounds Of Silence: Reconsidering The Invocation Of The Right To Remain Silent Under Miranda, Marcy Strauss
William & Mary Bill of Rights Journal
No abstract provided.