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Articles 1 - 20 of 20
Full-Text Articles in Law
Death, Desuetude, And Original Meaning, John F. Stinneford
Death, Desuetude, And Original Meaning, John F. Stinneford
William & Mary Law Review
One of the most common objections to originalism is that it cannot cope with cultural change. One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses. This Article shows that this objection to originalism is inapt, at least with respect to the Cruel and Unusual punishments Clause. As I have shown in prior articles, the original meaning of “cruel and unusual” is “cruel and contrary to …
A Process Failure Theory Of Statutory Interpretation, Mark Seidenfeld
A Process Failure Theory Of Statutory Interpretation, Mark Seidenfeld
William & Mary Law Review
Despite all that has been written about the choice between purposivist, intentionalist, and textualist approaches to statutory interpretation, to date the literature has not provided a justification for the common judicial practice of relying on intent-based inquiries in some cases and disavowing those approaches for textualism in others. This Article fills that void and, in doing so, lays out a new “legislative process failure” theory of statutory interpretation that has the potential to move the debate beyond a simple choice between textual and intent-based interpretation. This Article argues that Congress and the courts comprise different linguistic communities when they interpret …
The Real Constitutional Problem With State Judicial Selection: Due Process, Judicial Retention, And The Dangers Of Popular Constitutionalism, Martin H. Redish, Jennifer Aronoff
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 …
Congress's Treaty-Implementing Power In Historical Practice, Jean Galbraith
Congress's Treaty-Implementing Power In Historical Practice, Jean Galbraith
William & Mary Law Review
Historical practice strongly influences constitutional interpretation in foreign relations law, including most questions relating to the treaty power. Yet it is strikingly absent from the present debate over whether Congress can pass legislation implementing U.S. treaties under the Necessary and Proper Clause. Drawing on previously unexplored sources, this Article considers the historical roots of Congress’s power to implement U.S. treaties between the Founding Era and the seminal case of Missouri v. Holland in 1920. It shows that time after time, members of Congress understood the Necessary and Proper Clause to provide a constitutional basis for a congressional power to implement …
The Mechanics Of First Amendment Audience Analysis, David S. Han
The Mechanics Of First Amendment Audience Analysis, David S. Han
William & Mary Law Review
When the government seeks to regulate speech based on its content, it generally assumes that listeners will process the speech in a manner that produces social harm. Because the chain of causation for such speech-based harm runs through the filter of an audience, courts must constantly make judgments regarding the audience’s reception of such speech. How will the speech be interpreted by the audience? To what extent will the speech cause the audience either to suffer direct emotional harm or to react physically to the speech in a harmful manner? Although this sort of inquiry—which I refer to as “audience …
Presidential Constitutionalism And Civil Rights, Joseph Landau
Presidential Constitutionalism And Civil Rights, Joseph Landau
William & Mary Law Review
As the judicial and legislative branches have taken a more passive approach to civil rights enforcement, the President’s exercise of independent, extrajudicial constitutional judgment has become increasingly important. Modern U.S. presidents have advanced constitutional interpretations on matters of race, gender, HIV-status, self-incrimination, reproductive liberty, and gun rights, and President Obama has been especially active in promoting the rights of lesbian, gay, bisexual, and transgender (LGBT) persons—most famously by refusing to defend the Defense of Marriage Act (DOMA). Commentators have criticized the President’s refusal to defend DOMA from numerous perspectives but have not considered how the President’s DOMA policy fits within …
The Transformative Twelfth Amendment, Joshua D. Hawley
The Transformative Twelfth Amendment, Joshua D. Hawley
William & Mary Law Review
Scholars have long treated the Twelfth Amendment as a constitutional obscurity, a merely mechanical adjustment to the electoral college—and perhaps a less than successful one at that. This consensus is mistaken. In fact, the Twelfth Amendment accomplished one of the most consequential changes to the structure of our constitutional government yet. It fundamentally altered the nature of the Executive and the Executive’s relationship to the other branches of government. The Amendment changed the Executive into something it had not been before: a political office. The presidency designed at Philadelphia was intended to be neither a policymaking nor a representative institution, …
Personal Curtilage: Fourth Amendment Security In Public, Andrew Guthrie Ferguson
Personal Curtilage: Fourth Amendment Security In Public, Andrew Guthrie Ferguson
William & Mary Law Review
Do citizens have any Fourth Amendment protection from senseenhancing surveillance technologies in public? This Article engages a timely question as new surveillance technologies have redefined expectations of privacy in public spaces. It proposes a new theory of Fourth Amendment security based on the ancient theory of curtilage protection for private property. Curtilage has long been understood as a legal fiction that expands the protection of the home beyond the formal structures of the house. Based on custom and law protecting against both nosy neighbors and the government, curtilage was defined by the actions the property owner took to signal a …
Introduction: The Civil Jury As A Political Institution, Jason M. Solomon, Paula Hannaford-Agor
Introduction: The Civil Jury As A Political Institution, Jason M. Solomon, Paula Hannaford-Agor
William & Mary Law Review
No abstract provided.
Jury Ignorance And Political Ignorance, Ilya Somin
Jury Ignorance And Political Ignorance, Ilya Somin
William & Mary Law Review
No abstract provided.
Opening Remarks, Akhil Reed Amar
Fiduciary Principles And The Jury, Ethan J. Leib, Michael Serota, David L. Ponet
Fiduciary Principles And The Jury, Ethan J. Leib, Michael Serota, David L. Ponet
William & Mary Law Review
This Essay argues that because jurors exercise state authority with wide discretion over the legal and practical interests of other citizens, and because citizens repose trust and remain vulnerable to jury and juror decisions, juries and jurors share important similarities with traditional fiduciary actors such as doctors, lawyers, and corporate directors and boards. The paradigmatic fiduciary duties—those of loyalty and care—therefore provide useful benchmarks for evaluating and guiding jurors in their decisionmaking role. A sui generis public fiduciary duty of deliberative engagement also has applications in considering the obligations of jurors. This framework confirms much of what we know about …
Diversity And The Civil Jury, Christina S. Carbone, Victoria C. Plaut
Diversity And The Civil Jury, Christina S. Carbone, Victoria C. Plaut
William & Mary Law Review
No abstract provided.
Embedded Experts On Real Juries: A Delicate Balance, Shari Seidman Diamond, Mary R. Rose, Beth Murphy
Embedded Experts On Real Juries: A Delicate Balance, Shari Seidman Diamond, Mary R. Rose, Beth Murphy
William & Mary Law Review
“Experts” appear in the modern American courtroom on the jury as well as in the witness box, posing a dilemma for the legal system by offering a potentially valuable resource and an uncontrolled source of influence. Courts give ambiguous guidance to jurors on how they should handle their expertise in the deliberation room. On the one hand, jurors are told that they should “decide what the facts are from the evidence presented here in court.” By direct implication, then, jurors should not use outside information to evaluate the evidence. Jurors are also told, however, that they should “consider all of …
Political Decision Making By Informed Juries, William E. Nelson
Political Decision Making By Informed Juries, William E. Nelson
William & Mary Law Review
No abstract provided.
Second-Order Diversity Revisited, Jeffrey Abramson
Second-Order Diversity Revisited, Jeffrey Abramson
William & Mary Law Review
No abstract provided.
Restoring The Civil Jury's Role In The Structure Of Our Government, Sheldon Whitehouse
Restoring The Civil Jury's Role In The Structure Of Our Government, Sheldon Whitehouse
William & Mary Law Review
No abstract provided.
The Jury As A Political Institution: An Internal Perspective, Robert P. Burns
The Jury As A Political Institution: An Internal Perspective, Robert P. Burns
William & Mary Law Review
In this Essay, I will briefly describe some of the more obvious ways in which the jury has been considered a political institution. I will then discuss the senses in which we can understand the term “political” in the context of the American jury trial. I will describe the senses in which Hannah Arendt, perhaps the most important political philosopher of the twentieth century, tried to distinguish between “the political” and the “the legal” and the limitations of any such distinction. I will then turn to the heart of this Essay, a description of the ways in which the American …
Juries As Regulators Of Last Resort, Stephan Landsman
Juries As Regulators Of Last Resort, Stephan Landsman
William & Mary Law Review
No abstract provided.
Blackstone's Curse: The Fall Of The Criminal, Civil, And Grand Juries And The Rise Of The Executive, The Legislature, The Judiciary, And The States, Suja A. Thomas
William & Mary Law Review
No abstract provided.