Law Commons^™

Judging Hard Cases, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

The Roberts Court And Race, Institute Of Bill Of Rights Law, William & Mary Law School

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The Court And Limits On The Administrative State, Institute Of Bill Of Rights Law, William & Mary Law School

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The Roberts Court After A Seismic Term, Institute Of Bill Of Rights Law, William & Mary Law School

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Moot Court, Institute Of Bill Of Rights Law, William & Mary Law School

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2022-2023 Supreme Court Preview: Schedule Of Events, Institute Of Bill Of Rights Law, William & Mary Law School

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Granted Cases, Institute Of Bill Of Rights Law, William & Mary Law School

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2022-2023 Supreme Court Preview: Digital Notebook (Cover Page), Institute Of Bill Of Rights Law, William & Mary Law School

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2022-2023 Supreme Court Preview: Panelist Biographies, Institute Of Bill Of Rights Law, William & Mary Law School

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The Next Fight Over Guns In America, Timothy Zick, Diana Palmer

Popular Media

With Thursday’s Supreme Court decision [in New York State Rifle & Pistol Association Inc. v. Bruen], the only real remaining question is not whether Americans can carry firearms, but where.

Forgetting Marbury's Lesson: Qualified Immunity's Original Purpose, Tobias Kuehne

William & Mary Bill of Rights Journal

Substantial parts of the history of qualified immunity remain unwritten. While qualified immunity is hotly debated among scholars and practitioners, we know little about qualified immunity’s origins, and the institutional pressures that shaped its historical path. This Article provides that missing history. It begins by observing the striking parallels between Pierson v. Ray—qualified immunity’s origin case—and Marbury v. Madison. Both were suits against government officials to vindicate individual rights granted by a congressional statute, and both cases arose while the Court was under intense political pressure. In each case, the Supreme Court struck a surprising middle ground: It …

Imposing A Daily Burden On Thousands Of Innocent Citizens: The Supreme Court Unnecessarily Limited Motorists' Fourth Amendment Rights In Kansas V. Glover, George M. Dery

William & Mary Journal of Race, Gender, and Social Justice

This Article analyzes Kansas v. Glover, in which the Supreme Court ruled that an officer could stop a vehicle owned by a person having a revoked license on the assumption that the owner was currently driving the vehicle. This work examines the concerns created by Glover’s ruling. This Article asserts that, in creating its new rule enabling police to stop a motorist without first confirming his or her identity, the Court based its holding on the existence of two facts, thus effectively changing its traditional “totality of the circumstances” analysis for reasonable suspicion to a categorical rule. Further, …

Undue Deference To States In The 2020 Election Litigation, Joshua A. Douglas

William & Mary Bill of Rights Journal

COVID-19 has wreaked havoc on so much of our lives, including how to run our elections. Yet the federal courts have refused to respond appropriately to the dilemma that many voters faced when trying to participate in the 2020 election. Instead, the courts—particularly the U.S. Supreme Court and the federal appellate courts—invoked a narrow test that unduly defers to state election administration and fails to protect adequately the fundamental right to vote.

In constitutional litigation, a law usually must satisfy a two-part test: (1) does the state have an appropriate reason for the law and (2) is the law properly …

Moot Court, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

Election Law Beyond 2020, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

2021-2022 Supreme Court Preview: Digital Notebook (Cover Page), Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

Business & Statutory Interpretation Cases, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

Granted Cases, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

2021-2022 Supreme Court Preview: Schedule Of Events, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

Criminal Law Docket, Institute Of Bill Of Rights Law, William & Mary Law School

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Challenges Under The Religion Clauses, Institute Of Bill Of Rights Law, William & Mary Law School

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The 2021 Term And Stare Decisis, Institute Of Bill Of Rights Law, William & Mary Law School

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Civil Liberties, Institute Of Bill Of Rights Law, William & Mary Law School

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2021-2022 Supreme Court Preview: Panelist Biographies, Institute Of Bill Of Rights Law, William & Mary Law School

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The Supreme Court's Reticent Qualified Immunity Retreat, Katherine Mims Crocker

Faculty Publications

The recent outcry against qualified immunity, a doctrine that disallows damages actions against government officials for a wide swath of constitutional claims, has been deafening. But when the Supreme Court in November 2020 and February 2021 invalidated grants of qualified immunity based on reasoning at the heart of the doctrine for the first time since John Roberts became Chief Justice, the response was muted. With initial evaluations and competing understandings coming from legal commentators in the months since, this Essay explores what these cases appear to say about qualified immunity for today and tomorrow.

The Essay traces idealistic, pessimistic, and …

Fixing False Truths: Rethinking Truth Assumptions And Free-Expression Rationales In The Networked Era, Jared Schroeder

William & Mary Bill of Rights Journal

The First Amendment makes no mention of truth. Assumptions about truth, however, have become the foundations for free-expression rationales, the very bases for such freedoms in a democratic society. The Supreme Court gradually, over time, wedded Enlightenment assumptions about truth to the marketplace of ideas rationale for free expression. This Article examines, in light of massive, widespread adoption of networked technologies and AI and Supreme Court decisions that have undermined the distinctive role of truth, whether truth should be removed or replaced as a crucial, justifying concept in freedom of expression. The Article examines the marketplace approach’s history and assumptions, …

Will The Supreme Court Recover Its Own Fumble? How Alston Can Repair The Damage Resulting From Ncaa's Sports League Exemption, Alan J. Meese

Faculty Publications

Horizontal restraints are unlawful per se unless a court can identify some redeeming virtue that such restraints may create. In National Collegiate Athletic Association v. Board of Regents of the University of Oklahoma (“NCAA”), the Supreme Court rejected this standard, refusing to condemn horizontal restraints on price and output imposed by the NCAA without specifying any possible redeeming virtues. The Court emphasized that other restraints not before the Court were necessary to create and maintain athletic competition like that supervised by the NCAA. This exemption for sports leagues ensures that all restraints imposed by such entities merit Rule …

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 …

Reconsidering Section 1983'S Nonabrogation Of Sovereign Immunity, Katherine Mims Crocker

Faculty Publications

Motivated by civil unrest and the police conduct that prompted it, Americans have embarked on a major reexamination of how constitutional enforcement works. One important component is 42 U.S.C. § 1983, which allows civil suits against any "person" who violates federal rights. The U.S. Supreme Court has long held that "person" excludes states because Section 1983 flunks a condition of crystal clarity.

This Article reconsiders that conclusion--in legalese, Section 1983's nonabrogation of sovereign immunity--along multiple dimensions. Beginning with a negative critique, this Article argues that because the Court invented the crystal-clarity standard so long after Section 1983's enactment, the caselaw …

Unduly Burdening Abortion Jurisprudence, Mark Strasser

William & Mary Bill of Rights Journal

The undue burden standard is the current test to determine whether abortion regulations pass constitutional muster. But the function, meaning, and application of that test have varied over time, which undercuts the test’s usefulness and the ability of legislatures to know which regulations pass constitutional muster. Even more confusing, the Court has refused to apply the test in light of its express terms, which cannot fail to yield surprising conclusions and undercut confidence in the Court. The Court must not only clarify what the test means and how it is to be used, but must also formulate that test so …