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Full-Text Articles in Law

Manufacturing Sovereign State Mootness, Daniel Bruce Oct 2021

Manufacturing Sovereign State Mootness, Daniel Bruce

William & Mary Law Review

The idea that public defendants should receive any special treatment in the mootness context has been subject to intense criticism among commentators. Most notably, in the lead-up to the New York Rifle decision, Joseph Davis and Nicholas Reaves—two prominent First Amendment litigators from the Becket Fund for Religious Liberty—urged the Supreme Court to take the opportunity to correct the lower courts’ practice of blessing government abuse of the voluntary cessation doctrine. Indeed, the Supreme Court has never adopted a presumption in favor of government defendants such as the one applied by the Seventh Circuit in Killeen, and it failed to …


A Scapegoat Theory Of Bivens, Katherine Mims Crocker May 2021

A Scapegoat Theory Of Bivens, Katherine Mims Crocker

Faculty Publications

Some scapegoats are innocent. Some warrant blame, but not the amount they are made to bear. Either way, scapegoating can allow in-groups to sidestep social problems by casting blame onto out-groups instead of confronting such problems--and the in-groups' complicity in perpetuating them--directly.

This Essay suggests that it may be productive to view the Bivens regime's rise as countering various exercises in scapegoating and its retrenchment as constituting an exercise in scapegoating. The earlier cases can be seen as responding to social structures that have scapegoated racial, economic, and other groups through overaggressive policing, mass incarceration, and inequitable government conduct more …


The Federal Courts’ Rulemaking Buffer, Jordan M. Singer May 2019

The Federal Courts’ Rulemaking Buffer, Jordan M. Singer

William & Mary Law Review

Procedural rulemaking is often thought of as a second-order task for the federal court system, relevant to the courts’ work but not essential to their function. In reality, rulemaking plays an integral role in the court system’s operation by actively insulating the courts from environmental pressure. This Article explains how power over procedural rulemaking protects the federal courts from environmental uncertainty and describes the court system’s efforts to maintain the effectiveness of the rulemaking buffer in response to historical and contemporary challenges.


An Organizational Account Of State Standing, Katherine Mims Crocker May 2019

An Organizational Account Of State Standing, Katherine Mims Crocker

Faculty Publications

Again and again in regard to recent high-profile disputes, the legal community has tied itself in knots over questions about when state plaintiffs should have standing to sue in federal court, especially in cases where they seek to sue federal-government defendants. Lawsuits challenging everything from the Bush administration’s environmental policies to the Obama administration’s immigration actions to the Trump administration’s travel bans have become mired in tricky and technical questions about whether state plaintiffs belonged in federal court.

Should state standing cause so much controversy and confusion? This Essay argues that state plaintiffs are far more like at least one …


Our Prescriptive Judicial Power: Constitutive And Entrenchment Effects Of Historical Practice In Federal Courts Law, Ernest A. Young Nov 2016

Our Prescriptive Judicial Power: Constitutive And Entrenchment Effects Of Historical Practice In Federal Courts Law, Ernest A. Young

William & Mary Law Review

Scholars examining the use of historical practice in constitutional adjudication have focused on a few high-profile separation of powers disputes, such as the recent decisions in NLRB v. Noel Canning and Zivotofsky v. Kerry. This Article argues that “big cases make bad theory”—that the focus on high-profile cases of this type distorts our understanding of how historical practice figures into constitutional adjudication more generally. I shift focus here to the more prosaic terrain of federal courts law, where practice plays a pervasive role. That shift reveals two important insights: First, while historical practice plays an important constitutive role structuring and …


Is The “Arising Under” Jurisdictional Grant In Article Iii Self-Executing?, David R. Dow Oct 2016

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

William & Mary Bill of Rights Journal

No abstract provided.


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 …


Habeas Corpus Petitions In Federal And Tribal Courts: A Search For Individualized Justice, Carrie E. Garrow Oct 2015

Habeas Corpus Petitions In Federal And Tribal Courts: A Search For Individualized Justice, Carrie E. Garrow

William & Mary Bill of Rights Journal

No abstract provided.


Uniformity In The Federal Courts: A Proposal For Increasing The Use Of En Banc Appellate Review, Michael Ashley Stein Apr 1993

Uniformity In The Federal Courts: A Proposal For Increasing The Use Of En Banc Appellate Review, Michael Ashley Stein

Faculty Publications

No abstract provided.


The Impact Of Substantive Interests On The Law Of Federal Courts, Michael Wells Apr 1989

The Impact Of Substantive Interests On The Law Of Federal Courts, Michael Wells

William & Mary Law Review

No abstract provided.