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Articles 1 - 30 of 47
Full-Text Articles in Law
Becoming A Doctrine, Allison Orr Larsen
Becoming A Doctrine, Allison Orr Larsen
Faculty Publications
On the last day of the 2021–22 Term, the Supreme Court handed down a decision on “the major questions doctrine” and granted certiorari to hear a case presenting “the independent state legislature doctrine”—neither of which had been called “doctrines” there before. This raises a fundamental and underexplored question: how does a doctrine become a doctrine? Law students know the difference between doctrinal classes and seminars, but how does an idea bantered about in a seminar (say, about agencies deciding major questions) become a “doctrine” complete with judicial tests, steps, and exceptions? Taking an analogy to medicine, when does …
The Evolution Of Sodomy Decriminalization Jurisprudence In Transnational And Comparative Constitutional Perspective, Ayodeji Kamau Perrin
The Evolution Of Sodomy Decriminalization Jurisprudence In Transnational And Comparative Constitutional Perspective, Ayodeji Kamau Perrin
William & Mary Bill of Rights Journal
In this Article, I demonstrate that legal mobilization by activist litigants combined with a comparative methodological jurisprudence has been central to the “transnational legal process” of the generation and diffusion of the sodomy decriminalization norm since the 1950s. My analysis of the transnational comparative jurisprudence relies on a comprehensive legal survey of seven decades of decriminalization jurisprudence (1954–2022), primarily using successful cases. Although the scholarship on the well-known Dudgeon, Toonen, and NCGLE cases often asserts the influence that these cases had on subsequent domestic court constitutional jurisprudence, I suggest that it is the domestic privacy jurisprudence of lobbyists, …
Nomos, Narrative, And Nephi: Legal Interpretation In The Book Of Mormon, Nathan B. Oman
Nomos, Narrative, And Nephi: Legal Interpretation In The Book Of Mormon, Nathan B. Oman
Faculty Publications
The Book of Mormon helped launch one of America’s most successful religions, and millions around the world accept it as scripture. It is thus one of the more influential books to have been published in the United States. Ironically, precisely because of its role in the founding of Mormonism, the text of the Book of Mormon has often been ignored. Recently, however, the Book of Mormon has begun to attract the attention of scholars whose interest in the text goes beyond either religious devotion or the academic study of Mormonism. Rather, they look to the text as a literary creation …
The Temptation Of Cosmic Private Law Theory, Nathan B. Oman
The Temptation Of Cosmic Private Law Theory, Nathan B. Oman
Faculty Publications
It’s a heady time to be a theorist of private law. After decades of vague post-Realist functionalism or reductive economic theories, the latest generation of private law theorists have provided a proliferation of new philosophies of tort, contract, and property. The result has been a tremendous burst of intellectual creativity. While Kant and Hegel have been dragooned into debates over torts and contracts and even such supposedly wooly headed thinkers as Coke and Blackstone have been rehabilitated, there have been fewer efforts to generate natural law accounts of private law than one might expect, particularly in light of the revival …
Paternalism, Tolerance, And Acceptance: Modeling The Evolution Of Equal Protection In The Constitutional Canon, John Tehranian
Paternalism, Tolerance, And Acceptance: Modeling The Evolution Of Equal Protection In The Constitutional Canon, John Tehranian
William & Mary Law Review
This Article proposes a legal taxonomy through which we can model changes in interpretations and applications of antidiscrimination principles to best understand the evolution of equal protection doctrine. The goal for doing so is two-fold. First, through a careful exegesis of a wide range of equal protection cases from the past hundred and fifty years, the analysis provides a positive theory to chart how respect for minority rights can progress within a given doctrinal space. Second, the analysis provides an unabashedly normative assessment of how closely a given legal regime comes to accepting and celebrating the inherent dignitary interests of …
The Morality Of Fiduciary Law, Paul B. Miller
The Morality Of Fiduciary Law, Paul B. Miller
William & Mary Law Review
Recent work of fiduciary theory has provided conceptual synthesis requisite to understanding core fiduciary principles and the structure of fiduciary liability. However, normative questions have received only sporadic attention. What values animate fiduciary law? How does, or should, fiduciary law prove responsive to them?
While in other areas of private law theory—notably, tort theory— pioneering scholars went directly at normative questions like these, fiduciary theory has been exceptional in the reticence shown toward them. The reticence is sensible. Fiduciary principles are the product of equity’s most extended and convoluted program of supplementing surrounding law. They span several distinct forms of …
Janus-Faced Judging: How The Supreme Court Is Radically Weakening Stare Decisis, Michael Gentithes
Janus-Faced Judging: How The Supreme Court Is Radically Weakening Stare Decisis, Michael Gentithes
William & Mary Law Review
Drastic changes in Supreme Court doctrine require citizens to reorder their affairs rapidly, undermining their trust in the judiciary. Stare decisis has traditionally limited the pace of such change on the Court. It is a bulwark against wholesale jurisprudential reversals. But, in recent years, the stare decisis doctrine has come under threat.
With little public or scholarly notice, the Supreme Court has radically weakened stare decisis in two ways. First, the Court has reversed its long-standing view that a precedent, regardless of the quality of its reasoning, should stand unless there is some special, practical justification to overrule it. Recent …
Theories Of Prosecution, Jeffrey Bellin
Theories Of Prosecution, Jeffrey Bellin
Faculty Publications
For decades, legal commentators sounded the alarm about the tremendous power wielded by prosecutors. Scholars went so far as to identify uncurbed prosecutorial discretion as the primary source of the criminal justice system’s many flaws. Over the past two years, however, the conversation shifted. With the emergence of a new wave of “progressive prosecutors,” scholars increasingly hail broad prosecutorial discretion as a promising mechanism for criminal justice reform.
The abrupt shift from decrying to embracing prosecutorial power highlights a curious void at the center of criminal justice thought. There is no widely accepted normative theory of the prosecutorial role. As …
Dissent, Disagreement And Doctrinal Disarray: Free Expression And The Roberts Court In 2020, Clay Calvert
Dissent, Disagreement And Doctrinal Disarray: Free Expression And The Roberts Court In 2020, Clay Calvert
William & Mary Bill of Rights Journal
Using the United States Supreme Court’s 2019 rulings in Manhattan Community Access Corp. v. Halleck, Nieves v. Bartlett, and Iancu v. Brunetti as analytical springboards, this Article explores multiple fractures among the Justices affecting the First Amendment freedoms of speech and press. All three cases involved dissents, with two cases each spawning five opinions. The clefts compound problems witnessed in 2018 with a pair of five-to-four decisions in National Institute of Family and Life Advocates v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. Partisan divides, the Article argues, are only one problem with First Amendment …
Challenging Congress's Single-Member District Mandate For U.S. House Elections On Political Association Grounds, Austin Plier
Challenging Congress's Single-Member District Mandate For U.S. House Elections On Political Association Grounds, Austin Plier
William & Mary Law Review
No abstract provided.
Justice Begins Before Trial: How To Nudge Inaccurate Pretrial Rulings Using Behavioral Law And Economic Theory And Uniform Commercial Laws, Michael Gentithes
Justice Begins Before Trial: How To Nudge Inaccurate Pretrial Rulings Using Behavioral Law And Economic Theory And Uniform Commercial Laws, Michael Gentithes
William & Mary Law Review
Injustice in criminal cases often takes root before trial begins. Overworked criminal judges must resolve difficult pretrial evidentiary issues that determine the charges the State will take to trial and the range of sentences the defendant will face. Wrong decisions on these issues often lead to wrongful convictions. As behavioral law and economic theory suggests, judges who are cognitively busy and receive little feedback on these topics from appellate courts rely upon intuition, rather than deliberative reasoning, to resolve these questions. This leads to inconsistent rulings, which prosecutors exploit to expand the scope of evidentiary exceptions that almost always disfavor …
Temple, Talmud, And Sacrament: Some Christian Thoughts On Halakhah, Nathan B. Oman
Temple, Talmud, And Sacrament: Some Christian Thoughts On Halakhah, Nathan B. Oman
Faculty Publications
No abstract provided.
Contemporary Sunday Hunting Laws: Unnecessary Economic Roadblocks, Ripe For Repeal, Seamus Ovitt
Contemporary Sunday Hunting Laws: Unnecessary Economic Roadblocks, Ripe For Repeal, Seamus Ovitt
William & Mary Environmental Law and Policy Review
In America, Sunday closing laws, laws restricting what activities individuals could engage in, date back to the early colonial period; those early laws, like much of North American jurisprudence, trace their roots to the laws that existed in England at the time. Historically, however, laws restricting the behavior of individuals, specifically on Sundays, date back thousands of years; initially, their language was tied directly to that of the Old Testament. As God declared:
[s]ix days shalt thou labour, and do all thy work: But the seventh day [is] the Sabbath of the Lord thy God: [in it] thou shalt not …
The Internal Morality Of International Law, Evan Fox-Decent, Evan J. Criddle
The Internal Morality Of International Law, Evan Fox-Decent, Evan J. Criddle
Faculty Publications
No abstract provided.
Fiction In The Code: Reading Legislation As Literature, Thomas J. Mcsweeney
Fiction In The Code: Reading Legislation As Literature, Thomas J. Mcsweeney
Faculty Publications
One of the major branches of the field of law and literature is often described as "law as literature." Scholars of law as literature examine the law using the tools of literary analysis. The scholarship in this subfield is dominated by the discussion of narrative texts: confessions, victim-impact statements, and, above all, the judicial opinion. This article will argue that we can use some of the same tools to help us understand non-narrative texts, such as law codes and statutes. Genres create expectations. We do not expect a law code to be literary. Indeed, we tend to dissociate the law …
Commerce, Religion, And The Rule Of Law, Nathan B. Oman
Commerce, Religion, And The Rule Of Law, Nathan B. Oman
Faculty Publications
The rule of law and religion can act as commercial substitutes. Both can create the trust required for material prosperity. The rule of law simplifies social interactions, turning people into formal legal agents and generating a map of society that the state can observe and control, thus credibly committing to the enforcement of the legal rights demanded by impersonal markets. Religion, in contrast, embraces complex social identities. Within these communities, economic actors can monitor and sanction misbehavior. Both approaches have benefits and problems. The rule of law allows for trade among strangers, fostering peaceful pluralism. However, law breeds what Montesquieu …
The Third Pillar Of Jurisprudence: Social Legal Theory, Brian Z. Tamanaha
The Third Pillar Of Jurisprudence: Social Legal Theory, Brian Z. Tamanaha
William & Mary Law Review
No abstract provided.
Trademark As Promise, Laura A. Heymann
On Race, Gender, And Radical Tort Reform: A Review Of Martha Chamallas & Jennifer B. Wriggins, The Measure Of Injury: Race, Gender, And Tort Law, Vincent R. Johnson
On Race, Gender, And Radical Tort Reform: A Review Of Martha Chamallas & Jennifer B. Wriggins, The Measure Of Injury: Race, Gender, And Tort Law, Vincent R. Johnson
William & Mary Journal of Race, Gender, and Social Justice
No abstract provided.
Leiter On The Legal Realists, Michael S. Green
Leiter On The Legal Realists, Michael S. Green
Faculty Publications
In this essay reviewing Brian Leiter’s recent book Naturalizing Jurisprudence, I focus on two positions that distinguish Leiter’s reading of the American legal realists from those offered in the past. The first is his claim that the realists thought the law is only locally indeterminate – primarily in cases that are appealed. The second is his claim that they did not offer a prediction theory of law, but were instead committed to a standard positivist theory. Leiter’s reading is vulnerable, because he fails to discuss in detail those passages from the realists that inspired past interpretations. My goal is to …
Due Process And Punitive Damages: The Error Of Federal Excessiveness Jurisprudence, A. Benjamin Spencer
Due Process And Punitive Damages: The Error Of Federal Excessiveness Jurisprudence, A. Benjamin Spencer
Faculty Publications
The Supreme Court, in a line of several cases over the past decade, has established a rigorous federal constitutional excessiveness review for punitive damages awards based on the Due Process Clause. As a matter of substantive due process, says the Court, punitive awards must be evaluated by three "guideposts" set forth in BMW of North America v. Gore: the degree of reprehensibility of the defendant's conduct, the ratio between punitive and compensatory damages, and a comparison of the amount of punitive damages to any "civil or criminal penalties that could be imposed for comparable misconduct." Following up on this pronouncement …
Legal Realism As Theory Of Law, Michael S. Green
Legal Realism As Theory Of Law, Michael S. Green
William & Mary Law Review
No abstract provided.
The Unruliness Of Rules, Peter A. Alces
Ties In The Supreme Court Of The United States, Edward A. Hartnett
Ties In The Supreme Court Of The United States, Edward A. Hartnett
William & Mary Law Review
No abstract provided.
The Stumbling Block: Freedom, Rationality, And Legal Scholarship, Jeanne L. Schroeder
The Stumbling Block: Freedom, Rationality, And Legal Scholarship, Jeanne L. Schroeder
William & Mary Law Review
No abstract provided.
Taking Behavioralism Too Seriously? The Unwarranted Pessimism Of The New Behavioral Analysis Of Law, Gregory Mitchell
Taking Behavioralism Too Seriously? The Unwarranted Pessimism Of The New Behavioral Analysis Of Law, Gregory Mitchell
William & Mary Law Review
Legal scholars increasingly rely on a behavioral analysis of judgment and decision making to explain legal phenomena and argue for legal reforms. The. main argument of this new behavioral analysis of the law is twofold: (1)All human cognition is beset by systematic flaws in the way that judgments and decisions are made, and theseflaws lead to predictable irrational behaviors and (2) these widespread and systematic nonrational tendencies bring into serious question the assumption of procedural rationality underlying much legal doctrine. This Article examines the psychological research relied on by legal behavioralistst o form this argumenta nd demonstratest hat this research …
Is The Republic Circling The Drain?, W. Taylor Reveley Iii
Is The Republic Circling The Drain?, W. Taylor Reveley Iii
Faculty Publications
No abstract provided.
Normativity And Objectivity In Law, Dennis Patterson
Normativity And Objectivity In Law, Dennis Patterson
William & Mary Law Review
No abstract provided.
Forensic Constitutional Interpretation, Brian F. Havel
Forensic Constitutional Interpretation, Brian F. Havel
William & Mary Law Review
No abstract provided.
Regret And Contract "Science", Peter A. Alces
Regret And Contract "Science", Peter A. Alces
Faculty Publications
No abstract provided.