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Articles 1 - 21 of 21
Full-Text Articles in Law
The Federal Question Jurisdiction Under Article Iii: “First In The Minds Of The Framers,” But Today, Perhaps, Falling Short Of The Framers’ Expectations, Arthur D. Hellman
The Federal Question Jurisdiction Under Article Iii: “First In The Minds Of The Framers,” But Today, Perhaps, Falling Short Of The Framers’ Expectations, Arthur D. Hellman
Articles
As Chief Justice Marshall explained, “the primary motive” for creating a “judicial department” for the new national government was “the desire of having a [national] tribunal for the decision of all national questions.” Thus, although Article III of the Constitution lists nine kinds of “Cases” and “Controversies” to which the “judicial Power” of the United States “shall extend,” “the objects which stood first in the minds of the framers” were the cases “arising under” the Constitution, laws, and treaties of the United States. Today we refer to this as the federal question jurisdiction.
Of all federal question cases, the Framers …
Constitutional Interpretation: Have The Methods Used By The Supreme Court Changed Over Time?, Morgan A. Matney
Constitutional Interpretation: Have The Methods Used By The Supreme Court Changed Over Time?, Morgan A. Matney
Chancellor’s Honors Program Projects
No abstract provided.
Human Rights, Constitutional Rights, And Judicial Review: Comparing And Assessing Michael Perry's Early And Contemporary Arguments, Daniel O. Conkle
Human Rights, Constitutional Rights, And Judicial Review: Comparing And Assessing Michael Perry's Early And Contemporary Arguments, Daniel O. Conkle
Articles by Maurer Faculty
In this Essay, I explore, compare, and evaluate two theoretical models of judicial review in individual rights cases, each proposed by Professor Michael J. Perry, albeit in books separated by three and a half decades. In his 1982 book, The Constitution, the Courts, and Human Rights: An Inquiry into the Legitimacy of Constitutional Policymaking by the Judiciary, Early Perry embraced an aggressive form of judicial activism, urging the Supreme Court to test political judgments through an open-ended search for political-moral truth. Contemporary Perry, by contrast, takes a very different approach. In his 2017 book, A Global Political Morality: Human Rights, …
Protections Against Tyranny: How Article V Should Guide Constitutional Interpretation, Mary Strong
Protections Against Tyranny: How Article V Should Guide Constitutional Interpretation, Mary Strong
Indiana Law Journal
This Note seeks to explain what Article V means for the methods of constitutional change outside of the traditional Article V amendment process. Specifically, I argue that Article V was meant to limit the federal government from usurping power without first attaining the consent of the people. Because the Supreme Court is part of the federal government and is often considered a counter-majoritarian institution, the Court cannot extend the powers of the federal government through constitutional interpretation beyond the bounds allowed in the Constitution. Therefore, the only means to change the power structure of the federal government (the balance of …
Correspondence: The Stuff Of Constitutional Law, Neal Devins
Correspondence: The Stuff Of Constitutional Law, Neal Devins
Neal E. Devins
No abstract provided.
Congress As Culprit: How Lawmakers Spurred On The Court's Anti-Congress Crusade, Neal Devins
Congress As Culprit: How Lawmakers Spurred On The Court's Anti-Congress Crusade, Neal Devins
Neal E. Devins
No abstract provided.
Construction, Originalist Interpretation And The Complete Constitution, Richard Kay
Construction, Originalist Interpretation And The Complete Constitution, Richard Kay
Richard Kay
Justice Scalia’S Bottom-Up Approach To Shaping The Law, Meghan J. Ryan
Justice Scalia’S Bottom-Up Approach To Shaping The Law, Meghan J. Ryan
William & Mary Bill of Rights Journal
Justice Antonin Scalia is among the most famous Supreme Court Justices in history. He is known for his originalism and conservative positions, as well as his witty and acerbic legal opinions. One of the reasons Justice Scalia’s opinions are so memorable is his effective use of rhetorical devices, which convey colorful images and understandable ideas. One might expect that such powerful opinions would be effective in shaping the law, but Justice Scalia’s judicial philosophy was often too conservative to persuade a majority of his fellow Justices on the Supreme Court. Further, his regular criticisms of his Supreme Court colleagues were …
Magic Words, Kiel Brennan-Marquez
Magic Words, Kiel Brennan-Marquez
William & Mary Bill of Rights Journal
Broadly speaking, this Article has two goals. The first is to demonstrate the prominence of functionalism in the interpretive practices of the Supreme Court. Reading a case like NFIB, it would be easy to conclude that the tension between labels and function reflects a deep rift in our legal order. On reflection, though, the rift turns out to be something of a mirage. While judicial opinions do occasionally employ the rhetoric of label-formalism, we are all functionalists at heart.
The Article’s second goal is to explore two exceptions to this norm. One is a faux exception—an exception to functionalism that …
Plenary No Longer: How The Fourteenth Amendment "Amended" Congressional Jurisdiction-Stripping Power, Maggie Blackhawk
Plenary No Longer: How The Fourteenth Amendment "Amended" Congressional Jurisdiction-Stripping Power, Maggie Blackhawk
All Faculty Scholarship
This Note proposes a solution to the long-standing debate among federal courts scholars as to where to draw the limits of congressional power to strip appellate jurisdiction from the Supreme Court and to strip original jurisdiction from the lower federal courts. Although the Supreme Court has rarely addressed the possibility of limitations on congressional jurisdiction-stripping power, the few determinative cases to go before the Court reveal an acceptance of the orthodox view of plenary power. Proponents of the orthodox view maintain that state courts, bound to hear constitutional claims by their general jurisdictional grant and to enforce the Constitution by …
Much Ado About Pluralities: Pride And Precedent Amidst The Cacophony Of Concurrences, And Re-Percolation After Rapanos, Matthew J. Parlow, Donald J. Kochan
Much Ado About Pluralities: Pride And Precedent Amidst The Cacophony Of Concurrences, And Re-Percolation After Rapanos, Matthew J. Parlow, Donald J. Kochan
Matthew Parlow
A Constitutional Defense Of Legislative History, Paul E. Mcgreal
A Constitutional Defense Of Legislative History, Paul E. Mcgreal
William & Mary Bill of Rights Journal
No abstract provided.
Easing The Spring: Strict Scrutiny And Affirmative Action After The Redistricting Cases, Pamela S. Karlan
Easing The Spring: Strict Scrutiny And Affirmative Action After The Redistricting Cases, Pamela S. Karlan
William & Mary Law Review
No abstract provided.
The Constitution In Exile: Is It Time To Bring It In From The Cold?, William W. Van Alstyne
The Constitution In Exile: Is It Time To Bring It In From The Cold?, William W. Van Alstyne
Faculty Publications
No abstract provided.
Structural Review, Pseudo-Second-Look Decision Making, And The Risk Of Diluting Constitutional Liberty, Dan T. Coenen
Structural Review, Pseudo-Second-Look Decision Making, And The Risk Of Diluting Constitutional Liberty, Dan T. Coenen
William & Mary Law Review
No abstract provided.
Subconsitutional Constitutional Law: Supplement, Sham, Or Substitute?, Mark Tushnet
Subconsitutional Constitutional Law: Supplement, Sham, Or Substitute?, Mark Tushnet
William & Mary Law Review
No abstract provided.
A Constitution Of Collaboration: Protecting Fundamental Values With Second-Look Rules Of Interbranch Dialogue, Dan T. Coenen
A Constitution Of Collaboration: Protecting Fundamental Values With Second-Look Rules Of Interbranch Dialogue, Dan T. Coenen
William & Mary Law Review
No abstract provided.
Congress As Culprit: How Lawmakers Spurred On The Court's Anti-Congress Crusade, Neal Devins
Congress As Culprit: How Lawmakers Spurred On The Court's Anti-Congress Crusade, Neal Devins
Faculty Publications
No abstract provided.
Seventh Amendment Right To Jury Trial In Non-Article Iii Proceedings: A Study In Dysfunctional Constitutional Theory, Martin H. Redish, Daniel J. La Fave
Seventh Amendment Right To Jury Trial In Non-Article Iii Proceedings: A Study In Dysfunctional Constitutional Theory, Martin H. Redish, Daniel J. La Fave
William & Mary Bill of Rights Journal
The right to a jury trial in civil cases, as enumerated in the Seventh Amendment to the United States Constitution, is an integral part of the Bill of Rights. Nevertheless, in this Article, Professor Redish and Mr. La Fave argue that the Supreme Court has failed to preserve this right when Congress has relegated claims to a non-Article III forum. Furthermore, they argue, the Court has done so without providing any basis in constitutional theory to justify such a relinquishment.
Professor Redish and Mr. La Fave first examine the Supreme Court's interpretation of the Seventh Amendment in instances where Congress …
Correspondence: The Stuff Of Constitutional Law, Neal Devins
Correspondence: The Stuff Of Constitutional Law, Neal Devins
Faculty Publications
No abstract provided.
A Lesson In Incaution, Overwork, And Fatigue: The Judicial Miscraftsmanship Of Segura V. United States, Joshua Dressler
A Lesson In Incaution, Overwork, And Fatigue: The Judicial Miscraftsmanship Of Segura V. United States, Joshua Dressler
William & Mary Law Review
No abstract provided.