Law Commons^™

Judges And Mass Incarceration, Carissa Byrne Hessick

William & Mary Bill of Rights Journal

It seems to have fallen out of fashion to talk about judges as a source of criminal justice reform. Instead, the academic literature now focuses on the role that prosecutors and legislatures have played in mass incarceration. But judges have also played an important role in the phenomenon that has come to be known as mass incarceration. Perhaps more importantly, there are things that judges could do to help reverse that trend.

Judges will sometimes say our system is too harsh. But, in the same breath they tell us the decision to create such a system and the decision to …

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

William & Mary Bill of Rights Journal

No abstract provided.

Retaining Judicial Authority: A Preliminary Inquiry On The Dominion Of Judges, Larry Catá Backer

William & Mary Bill of Rights Journal

Why do the people and institutions of democratic states, and in particular those of the United States, obey judges ? This article examines the foundations of judicial authority in the United States. This authority is grounded on principles of dominance derived from the organization of institutional religion. The judge in Western states asserts authority on the same basis as the priest - but not the priest as conventionally understood. Rather, the authority of the judge in modern Western democratic states is better understood when viewed through the analytical lens of priestly function developed in the philosophy of Friedrich Nietzsche. Focusing …

Book Review Of By What Right? A Commentary On The Superem Court's Power To Revise The Constitution, Stephen R. Munzer

William & Mary Law Review

No abstract provided.