Law Commons^™

Who Constrains Presidential Exercise Of Delegated Powers?, Rebecca L. Brown

William & Mary Bill of Rights Journal

Building on the work of administrative law scholars who have identified and illuminated the several components of the problem over the years, this Article will seek to show what has happened when a cluster of separate circumstances have come together to create a new and serious threat to individual liberty when the President exercises expansive delegated authority. Several doctrinal components lead to this confluence: First, the moribund “intelligible principle” test has evolved to provide little or no constraint on this or any other delegation. Second, a delegation to the President, specifically, is not subject to the procedural requirements of the …

The Case Against Prosecuting Refugees, Evan J. Criddle

Faculty Publications

Within the past several years, the U.S. Department of Justice has pledged to prosecute asylum-seekers who enter the United States outside an official port of entry without inspection. This practice has contributed to mass incarceration and family separation at the U.S.–Mexico border, and it has prevented bona fide refugees from accessing relief in immigration court. Yet, federal judges have taken refugee prosecution in stride, assuming that refugees, like other foreign migrants, are subject to the full force of American criminal justice if they skirt domestic border controls. This assumption is gravely mistaken.

This Article shows that Congress has not authorized …

Toolkit Or Tinderbox? When Legal Systems Interface Conflict, Christie S. Warren

Faculty Publications

No abstract provided.

Understanding The Spirit Of The Constitution On Corruption: Emoluments, Impeachment, And The Primacy Of Political Virtue, Lea Mano

William & Mary Bill of Rights Journal

No abstract provided.

The Internal Morality Of International Law, Evan Fox-Decent, Evan J. Criddle

Faculty Publications

No abstract provided.

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 Rhetoric Of Constitutional Absolutism, Eric Berger

William & Mary Law Review

Though constitutional doctrine is famously unpredictable, Supreme Court Justices often imbue their constitutional opinions with a sense of inevitability. Rather than concede that evidence is sometimes equivocal, Justices insist with great certainty that they have divined the correct answer. This Article examines this rhetoric of constitutional absolutism and its place in our broader popular constitutional discourse. After considering examples of the Justices’ rhetorical performances, this Article explores strategic, institutional, and psychological explanations for the phenomenon. It then turns to the rhetoric’s implications, weighing its costs and benefits. This Article ultimately argues that the costs outweigh the benefits and proposes a …

General Law In Federal Court, Anthony J. Bellia Jr., Bradford R. Clark

William & Mary Law Review

No abstract provided.

Human Rights, Emergencies, And The Rule Of Law, Evan J. Criddle, Evan Fox-Decent

Faculty Publications

This article illuminates the normative basis for international law’s regulation of public emergencies by arguing that human rights are best conceived as norms arising from a fiduciary relationship between states (or state-like actors) and persons subject to their power. States bear a fiduciary duty to guarantee subjects’ secure and equal freedom, a duty that flows from their institutional assumption of sovereign powers. The fiduciary theory disarms Carl Schmitt’s critique of constitutionalism by explaining how emergency powers can be reconciled with the rule of law.

Federal Law In State Court: Judicial Federalism Through A Relational Lens, Charlton C. Copeland

William & Mary Bill of Rights Journal

Enforcing federalism is most commonly thought to involve the search for a
constitutional delegation of substantive power. Although in modern times the substantive power might be overlapping or shared authority, federalism enforcement proceeds from a determination about the site of substantive power. This conception of federalism enforcement preserves the Constitution’s commitment to fractionated authority by determining whether power is legitimately possessed. Thus we understand significant federalism disputes in our age as framed by whether Congress has the authority to enact comprehensive health care reform legislation, or whether Congress
has exceeded its authority in reenacting the Voting Rights Act’s preclearance requirements. …

Mending Holes In The Rule Of (Administrative) Law, Evan J. Criddle

Faculty Publications

No abstract provided.

All Bark And No Bite: A Modern Evidentiary Argument For The Retirement Of The Age-Old Pennsylvania Rule, Bin Wang

William & Mary Law Review

No abstract provided.

Book Review Of A Jurisprudence Of Power: Victorian Empire And The Rule Of Law, Michael Ashley Stein

Faculty Publications

No abstract provided.

Popular Authorship And Constitution Making: Comparing And Contrasting The Drc And Kenya, James Thuo Gathii

William & Mary Law Review

No abstract provided.

What's In A Name? Reflections On Timing, Naming, And Constitution-Making, Vicki C. Jackson

William & Mary Law Review

No abstract provided.

Post-Conflict Rule Of Law Building: The Need For A Multi-Layered, Synergistic Approach, Jane Stromseth

William & Mary Law Review

No abstract provided.

Invoking The Rule Of Law In Post-Conflict Rebuilding: A Critical Examination, Balakrishnan Rajagopal

William & Mary Law Review

No abstract provided.

Presidential Signing Statements And The Rule Of Law As An "Unstructured Institution", Peter M. Shane

William & Mary Bill of Rights Journal

No abstract provided.

Book Review Of Can Might Make Rights? Building The Rule Of Law After Military Interventions, Lan Cao

Faculty Publications

No abstract provided.

Constitutional Decision-Making Outside The Courts, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Reaching Out To The Rule Of Law: China's Continuing Efforts To Develop An Effective Environmental Law Regime, Richard J. Ferris, Hongjun Zhang

William & Mary Bill of Rights Journal

No abstract provided.

Introduction To The Symposium: The Rule Of Law Of China, Lan Cao

William & Mary Bill of Rights Journal

No abstract provided.

Environmental Law With Chinese Characteristics, Eric W. Orts

William & Mary Bill of Rights Journal

No abstract provided.

Law Without Law, Or Is "Chinese Law" An Oxymoron?, Teemu Ruskola

William & Mary Bill of Rights Journal

No abstract provided.

The U.S.-China Rule Of Law Initiative, Paul Gewirtz

William & Mary Bill of Rights Journal

No abstract provided.

Civil Rights And Civil Liberties: Whose "Rule Of Law"?, William W. Van Alstyne

William & Mary Bill of Rights Journal

No abstract provided.

The Constitution Outside The Courts, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Law As Largess: Shifting Paradigms Of Law For The Poor, Deborah M. Weissman

William & Mary Law Review

No abstract provided.

The Separation Of Powers And The Rule Of Law: The Virtues Of "Seeing The Trees", Peter M. Shane

William & Mary Law Review

No abstract provided.

Separation Of Powers, The Rule Of Law And The Idea Of Independence, Paul R. Verkuil

William & Mary Law Review

No abstract provided.