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Will The Supreme Court Recover Its Own Fumble? How Alston Can Repair The Damage Resulting From Ncaa's Sports League Exemption, Alan J. Meese Jun 2021

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 of Reason ...


A Scapegoat Theory Of Bivens, Katherine Mims Crocker May 2021

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 ...


Divided Court Issues Bright-Line Ruling On Fourth Amendment Seizures, Jeffrey Bellin Mar 2021

Divided Court Issues Bright-Line Ruling On Fourth Amendment Seizures, Jeffrey Bellin

Popular Media

No abstract provided.


Eager To Follow: Methodological Precedent In Statutory Interpretation, Aaron-Andrew P. Bruhl Dec 2020

Eager To Follow: Methodological Precedent In Statutory Interpretation, Aaron-Andrew P. Bruhl

Faculty Publications

An important recent development in the field of statutory interpretation is the emergence of a movement calling for "methodological precedent"--a regime under which courts give precedential effect to interpretive methodology. In such a system, a case would establish not only what a particular statute means but could also establish binding rules of methodology--which tools are valid, in what order, and so on. The movement for methodological precedent has attracted sharp criticism on normative grounds. But both sides of the normative debate agree on the premise that the federal courts generally do not give precedential effect to interpretive methodology today ...


The Remand Power And The Supreme Court's Role, Aaron-Andrew P. Bruhl Nov 2020

The Remand Power And The Supreme Court's Role, Aaron-Andrew P. Bruhl

Faculty Publications

"Reversed and remanded." Or "vacated and remanded." These familiar words, often found at the end of an appellate decision, emphasize that an appellate court's conclusion that the lower court erred generally does not end the litigation. The power to remand for further proceedings rather than wrap up a case is useful for appellate courts because they may lack the institutional competence to bring the case to a final resolution (as when new factual findings are necessary) or lack an interest in the fact-specific work of applying a newly announced legal standard to the particular circumstances at hand. The modern ...


Argument Analysis: Justices Spar Over Stare Decisis, Originalism, Text And What Counts As A Fourth Amendment “Seizure”, Jeffrey Bellin Oct 2020

Argument Analysis: Justices Spar Over Stare Decisis, Originalism, Text And What Counts As A Fourth Amendment “Seizure”, Jeffrey Bellin

Popular Media

No abstract provided.


Case Preview: When Is A Fleeing Suspect “Seized”?, Jeffrey Bellin Oct 2020

Case Preview: When Is A Fleeing Suspect “Seized”?, Jeffrey Bellin

Popular Media

The Fourth Amendment prohibits unreasonable “searches” and “seizures.” On Wednesday, the Supreme Court is scheduled to hear oral argument in Torres v. Madrid, a case that will provide important guidance on what constitutes a Fourth Amendment seizure. Here’s a rundown of the case starting with the relevant facts and procedural history, followed by a discussion of the legal issues and finally a couple of things to watch for at the argument.


As She Lies In State, A Tribute To Justice Ginsburg, Katherine Mims Crocker Sep 2020

As She Lies In State, A Tribute To Justice Ginsburg, Katherine Mims Crocker

Popular Media

No abstract provided.


2020-2021 Supreme Court Preview: Biographies Of 2020 Supreme Court Preview Panelists, Institute Of Bill Of Rights Law At The College Of William & Mary Law School Sep 2020

2020-2021 Supreme Court Preview: Biographies Of 2020 Supreme Court Preview Panelists, Institute Of Bill Of Rights Law At The College Of William & Mary Law School

Supreme Court Preview

No abstract provided.


2020-2021 Supreme Court Preview: Schedule Of Events, Institute Of Bill Of Rights Law At The College Of William & Mary Law School Sep 2020

2020-2021 Supreme Court Preview: Schedule Of Events, Institute Of Bill Of Rights Law At The College Of William & Mary Law School

Supreme Court Preview

No abstract provided.


What Is The Future Of The Supreme Court? Potential Reforms, Their Likelihood, And Their Implications, Institute Of Bill Of Rights Law At The College Of William & Mary Law School Sep 2020

What Is The Future Of The Supreme Court? Potential Reforms, Their Likelihood, And Their Implications, Institute Of Bill Of Rights Law At The College Of William & Mary Law School

Supreme Court Preview

On Saturday, September 12 at 4:15pm, the Supreme Court Preview will feature a panel on "What is the Future of the Supreme Court? Potential Reforms, Their Likelihood, and Their Implications." Democrats recently unveiled “structural court reforms” as part of their platform. These potential reforms include, among others, adding seats to the Supreme Court, making changes to the confirmation process, and shortening the Justices’ terms of office. This panel will discuss which reforms seem most likely to be adopted and what concerns are motivating them. Twenty-five W&M students will also bring their questions to the panel about the future ...


Transparency And The Shadow Docket, Institute Of Bill Of Rights Law At The College Of William & Mary Law School Sep 2020

Transparency And The Shadow Docket, Institute Of Bill Of Rights Law At The College Of William & Mary Law School

Supreme Court Preview

On Saturday, September 12 at 2:00pm, the Supreme Court Preview will feature a panel on "Transparency and the Shadow Docket." “The shadow docket” is a phrase used to describe the significant volume of orders and summary decisions that the Supreme Court issues without full briefing and oral argument. This panel will discuss what is new and what is not about the shadow docket. The panelists will speculate on the ways in which the Court will use these orders going forward, and will discuss the upsides and downsides of doing so.


2020-2021 Supreme Court Preview: Notebook Cover Page, Allison Orr Larsen, Neal Devins, Rebecca Green, Institute Of Bill Of Rights Law At The College Of William & Mary Law School Sep 2020

2020-2021 Supreme Court Preview: Notebook Cover Page, Allison Orr Larsen, Neal Devins, Rebecca Green, Institute Of Bill Of Rights Law At The College Of William & Mary Law School

Supreme Court Preview

Our traditional notebook will not be available this year due to the virtual setting. However, we have compiled this virtual notebook to provide all participating in the Supreme Court Preview an opportunity to learn more about the upcoming docket and the issues facing the Court. We hope you enjoy the wealth of information available throughout this virtual notebook.


The Supreme Court And The 2020 Election: What Challenges Are Likely And What Will Be The Supreme Court's Role In Deciding Them?, Institute Of Bill Of Rights Law At The College Of William & Mary Law School Sep 2020

The Supreme Court And The 2020 Election: What Challenges Are Likely And What Will Be The Supreme Court's Role In Deciding Them?, Institute Of Bill Of Rights Law At The College Of William & Mary Law School

Supreme Court Preview

On Friday, September 11 at 5:30pm, the Supreme Court Preview will feature a panel on "The Supreme Court and the 2020 Election What Challenges are likely and what will be the Supreme Court's Role in Deciding them?" As we approach a historic election in November 2020, many anticipate that election challenges will wind up in federal court. This panel will discuss trends in COVID-related election cases at the Court so far, anticipate which challenges are likely going forward, and will speculate what the Supreme Court’s role will be in deciding them. What has changed at the Court ...


Moot Court, Institute Of Bill Of Rights Law At The College Of William & Mary Law School Sep 2020

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

Supreme Court Preview

No abstract provided.


Granted Cases, Institute Of Bill Of Rights Law At The College Of William & Mary Law School Sep 2020

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

Supreme Court Preview

No abstract provided.


Who Is The Real John Roberts? Predicting The Surprises Of The Fall Term, Institute Of Bill Of Rights Law At The College Of William & Mary Law School Sep 2020

Who Is The Real John Roberts? Predicting The Surprises Of The Fall Term, Institute Of Bill Of Rights Law At The College Of William & Mary Law School

Supreme Court Preview

On Saturday, September 12 at 3:00pm, the Supreme Court Preview will feature a panel on "Who is the Real John Roberts? Predicting the Surprises of the Fall Term." Chief Justice Roberts cast several votes in high-profile cases last Term that many found to be surprising, and it led to a debate over whether the Chief Justice should be described as a moderate or not. This panel will anticipate which cases in the 2020-2021 Term will provide an opportunity for the Chief Justice to cast the deciding vote, and will address whether the Chief Justice’s voting pattern in 2020 ...


United States Patent And Trademark Office V. Booking.Com B.V.: How Do We Know When Something Is A Name?, Laura A. Heymann Jul 2020

United States Patent And Trademark Office V. Booking.Com B.V.: How Do We Know When Something Is A Name?, Laura A. Heymann

Popular Media

No abstract provided.


Abortion Case May Not Overturn Roe, But Could Effectively Nullify It, A. Benjamin Spencer Mar 2020

Abortion Case May Not Overturn Roe, But Could Effectively Nullify It, A. Benjamin Spencer

Popular Media

No abstract provided.


Justices Make The Tough-- But Right-- Call In Cross-Border Shooting Case, A. Benjamin Spencer Feb 2020

Justices Make The Tough-- But Right-- Call In Cross-Border Shooting Case, A. Benjamin Spencer

Popular Media

No abstract provided.


First, We'll Neuter All The Judges, A. Benjamin Spencer Feb 2020

First, We'll Neuter All The Judges, A. Benjamin Spencer

Popular Media

No abstract provided.


First Amendment Lochnerism & The Origins Of The Incorporation Doctrine, James Y. Stern Jan 2020

First Amendment Lochnerism & The Origins Of The Incorporation Doctrine, James Y. Stern

Faculty Publications

The 20th century emergence of the incorporation doctrine is regarded as a critical development in constitutional law, but while issues related to the doctrine's justification have been studied and debated for more than fifty years, the causes and mechanics of its advent have received relatively little academic attention. This Essay, part of a symposium on Judge Jeffrey Sutton's recent book about state constitutional law, examines the doctrinal origins of incorporation, in an effort to help uncover why the incorporation doctrine emerged when it did and the way it did. It concludes that, for these purposes, incorporation is best ...


Virtual Briefing At The Supreme Court, Jeffrey L. Fisher, Allison Orr Larsen Dec 2019

Virtual Briefing At The Supreme Court, Jeffrey L. Fisher, Allison Orr Larsen

Faculty Publications

The open secret of Supreme Court advocacy in a digital era is that there is a new way to argue to the Justices. Today's Supreme Court arguments are developed online: they are dissected and explored in blog posts, fleshed out in popular podcasts, and analyzed and re-analyzed by experts who do not represent the parties or have even filed a brief in the case at all. This "virtual briefing" (as we call it) is intended to influence the Justices and their law clerks but exists completely outside of traditional briefing rules. This article describes virtual briefing and makes a ...


2019-2020 Supreme Court Preview: Contents, Institute Of Bill Of Rights Law At The William & Mary Law School Sep 2019

2019-2020 Supreme Court Preview: Contents, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


2019-2020 Supreme Court Preview: Schedule And Panel Members, Institute Of Bill Of Rights Law At The William & Mary Law School Sep 2019

2019-2020 Supreme Court Preview: Schedule And Panel Members, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 1: Moot Court: Bostock V. Clayton County, Georgia; Altitude Express, Inc. V. Zarda, Institute Of Bill Of Rights Law At The William & Mary Law School Sep 2019

Section 1: Moot Court: Bostock V. Clayton County, Georgia; Altitude Express, Inc. V. Zarda, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 4: Immigration Law, Institute Of Bill Of Rights Law At The William & Mary Law School Sep 2019

Section 4: Immigration Law, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 2: What To Expect From The Roberts Court, Institute Of Bill Of Rights Law At The William & Mary Law School Sep 2019

Section 2: What To Expect From The Roberts Court, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 3: Criminal Law, Institute Of Bill Of Rights Law At The William & Mary Law School Sep 2019

Section 3: Criminal Law, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 6: Civil Rights, Institute Of Bill Of Rights Law At The William & Mary Law School Sep 2019

Section 6: Civil Rights, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.