Law Commons^™

Manufacturing Sovereign State Mootness, Daniel Bruce

William & Mary Law Review

The idea that public defendants should receive any special treatment in the mootness context has been subject to intense criticism among commentators. Most notably, in the lead-up to the New York Rifle decision, Joseph Davis and Nicholas Reaves—two prominent First Amendment litigators from the Becket Fund for Religious Liberty—urged the Supreme Court to take the opportunity to correct the lower courts’ practice of blessing government abuse of the voluntary cessation doctrine. Indeed, the Supreme Court has never adopted a presumption in favor of government defendants such as the one applied by the Seventh Circuit in Killeen, and it failed to …

The Modest Impact Of The Modern Confrontation Clause, Jeffrey Bellin, Diana Bibb

Faculty Publications

The Sixth Amendment's Confrontation Clause grants criminal defendants the right "to be confronted with the witnesses against" them. A strict reading of this text would transform the criminal justice landscape by prohibiting the prosecution's use of hearsay at trial. But until recently, the Supreme Court's interpretation of the Clause was closer to the opposite. By tying the confrontation right to traditional hearsay exceptions, the Court's longstanding precedents granted prosecutors broad freedom to use out-of-court statements to convict criminal defendants.

The Supreme Court's 2004 decision in Crawford v. Washington was supposed to change all that. By severing the link between the …

Race-Based Remedies In Criminal Law, Ion Meyn

William & Mary Law Review

This Article evaluates the constitutional feasibility of using race-based remedies to address racial disparities in the criminal system. Compared to white communities, communities of color are over-policed and over-incarcerated. Criminal system stakeholders recognize that these conditions undermine perceptions of legitimacy critical to ensuring public safety. As jurisdictions assiduously attempt race-neutral fixes, they also acknowledge the shortcomings of such interventions. Nevertheless, jurisdictions dismiss the feasibility of deploying more effective race-conscious strategies due to the shadow of a constitutional challenge. The apprehension is understandable. Debates around affirmative action in higher education and government contracting reveal fierce hostility toward race-based remedies.

This Article, …

Federalism, Free Competition, And Sherman Act Preemption Of State Restraints, Alan J. Meese

Faculty Publications

The Sherman Act establishes free competition as the rule governing interstate trade. Banning private restraints cannot ensure that competitive markets allocate the nation's resources. State laws can pose identical threats to free markets, posing an obstacle to achieving Congress's goal to protect free competition.

The Sherman Act would thus override anticompetitive state laws under ordinary preemption standards. Nonetheless, the Supreme Court rejected such preemption in Parker v. Brown, creating the "state action doctrine." Parker and its progeny hold that state-imposed restraints are immune from Sherman Act preemption, even if they impose significant harm on out-of-state consumers. Parker's progeny …

Populism And Constitutionalism: An Essay On Definitions And Their Implications, Mark Tushnet, Bojan Bugarič

Cardozo Law Review

No abstract provided.

Introductory Essay For The Issue Devoted To The Appointment Of Amy Coney Barrett To The U.S. Supreme Court, David Rudenstine

Cardozo Law Review

No abstract provided.

The Article Iii Publication Power And The Foreign Intelligence Surveillance Court, John Langford

Cardozo Law Review

The Framers vested “the judicial Power of the United States” in independent courts so that they may protect individual liberty and serve as a check on the legislative and executive branches. The judicial power, however, is narrow and not self-executing. As Chief Justice Marshall put it, it is merely the power “to say what the law is.” Federal courts cannot raise armies or pay money to enforce their decrees. Having neither force nor will, courts must instead rely on cultivating public support to secure the authoritative legitimacy necessary to effectuate their judgments.

But what happens when the executive branch asserts …

Deceive, Profit, Repeat: Public Deception Schemes To Conceal Product Dangers, Wes Henricksen

Cardozo Law Review

Companies in numerous industries have misled the public by hiding the dangers posed by their products. Sugar manufacturers hid the dangers of high fructose corn syrup and misdirected the public’s attention to fat, causing an epidemic of diabetes, obesity, and heart disease. Opioid manufacturers hid the dangers and addictiveness of opioid painkillers, leading to the opioid crisis. Fossil fuel companies misled the public about the causes, certainty, and effects of global warming, resulting in massive unregulated CO2 emissions and causing one of the greatest threats to humankind. This Article identifies all such schemes as belonging to a category of wrongs …

I Choose, You Decide: Checking The Judiciary From Within, Jeremy N. Sheff

Cardozo Law Review

Efforts to rein in partisanship (or the perception thereof) on the Supreme Court tend to focus either on what Ryan Doerfler and Samuel Moyn call “personnel reforms”—changes to the selection, appointment, or tenure of Justices—or on what they call “disempowering reforms”—changes that divert some of the judiciary’s authority to the political branches, for example via jurisdiction stripping. I propose a different—and perhaps complementary—reform, which would achieve some of the goals of both types of reform without requiring a constitutional amendment. I propose that the selection of a case for the Supreme Court’s discretionary appellate docket should be performed by a …

Amplified Speech, Erin L. Miller

Cardozo Law Review

This Article introduces the concept of amplification into First Amendment law. Amplification, or the size of the audience reached by speech, lies at the heart of many contemporary free speech struggles. Yet the concept is surprisingly absent as a category of analysis from constitutional doctrine and virtually undiscussed in legal scholarship. Amplification deserves its own set of legal rules and doctrines, because the right to amplify one’s speech serves the two core types of First Amendment interests—those of audiences and those of speakers—differently than the right to choose the content of one’s speech. The higher the degree of amplification, the …

Why The Civil Rights Cases Belong In The Anti-Canon: Black Citizenship, The Fourteenth Amendment, And Judicial Interposition, Matthew Norman, Christopher Bryant

ConLawNOW

This essay analyzes the Supreme Court’s ruling in The Civil Rights Cases (1883) and surveys both contemporary and scholarly responses to it. Citizenship should mean something, and the Court’s ruling in The Civil Rights Cases invalidated much of the Civil Rights Act of 1875, the most ambitious and progressive civil rights legislation that Congress enacted prior to 1964. When the Supreme Court issued its decision in Dred Scott, Abraham Lincoln warned of a sequel that would nationalize slavery. While the Thirteenth Amendment eliminated the possibility of such a decision, Dred Scott is widely recognized as one of the Court’s …

Restoring Causality In Attenuation: Establishing The Breadth Of A Fourth Amendment Violation, Bryan H. Ward

West Virginia Law Review

When the police violate a suspect’s Fourth Amendment rights, what often follows is the discovery of incriminating evidence. Sometimes the evidence is discovered directly after the Fourth Amendment violation. In other situations, the evidence comes by a more indirect route and may occur long after the original Fourth Amendment violation. Courts struggle when trying to decide if the discovery of this indirectly obtained evidence was caused by the police misconduct. This causal question is important because causality acts as a limiting principle when deciding when to apply the exclusionary rule. A basic view of the exclusionary rule suggests that evidence …

Caperton V. A.T. Massey Coal Co.: A Ten-Year Retrospective On Its Impact On Law And The Judiciary, Amam Mcleod

West Virginia Law Review

No abstract provided.

Legalizing Undocumented Work, Jennifer J. Lee

Cardozo Law Review

No abstract provided.

The Expressive Fourth Amendment, Karen Pita Loor

Faculty Scholarship

After the eight-minute and forty-six second video of George Floyd’s murder went viral, cities across the United States erupted in mass protests with people outraged by the death of yet another Black person at the hands of police. The streets were flooded for months with activists and community members of all races marching, screaming, and demonstrating against police brutality and for racial justice. Police—like warriors against enemy forces—confronted overwhelmingly peaceful protesters with militarized violence and force. Ultimately, racial justice protesters and members of the media brought lawsuits under section 1983 of the Civil Rights Act in the district courts of …

Aals Constitutional Law Panel On Brown, Another Council Of Nicaea?, Kelly A. Macgrady, John W. Van Doren

Akron Law Review

When considering the product of the AALS Constitutional Law Panel, entitled "What Brown Should Have Said," held in January 2000, in Washington, D.C., we have experienced considerable disorientation. We therefore ask the question asked by Lucretia in Machievelli's play, The Mandragola, "Do you mean it or are you laughing at me?" We fear that the Panelists may be laughing at us. Because, in short, their writings criticize the formalism that they use in the panel court opinions. In this article, we pick four of the Panelists, more or less at random, and confront the question of whether their writings before …

Identifying Super-Precedents In An Era Of Human Rights, Vincent J. Samar

Pace Law Review

This Article discusses what a “super-precedent” is in American Constitutional Law. Additionally, it describes the current criteria used to identify super-precedents and the limitations of these criteria. It then mentions the various precedents that have been afforded this august title and suggests the need for an additional criterion to ensure the continued protection of those precedents most closely associated with the protection of human rights. Finally, the article identifies three additional precedents, beyond those usually recognized, that ought to be ranked super-precedents and provides a basis for ranking all precedents, grounded in autonomy, when they either conflict with one another …

Should The Dead Bind The Living? Perhaps Ask The People: An Examination Of The Debates Over Constitutional Convention Referendums In State Constitutional Conventions, John J. Liolos

Akron Law Review

Should the United States of America have a constitutional convention? Thomas Jefferson would maintain that one is long overdue; James Madison would argue the contrary. These two luminaries of American constitutional thought took sides in a stirring debate on a fundamental question in constitutionalism: should the dead bind the living? Jefferson advocated for recurrent recourse to the people by holding constitutional conventions in each generation. James Madison disagreed, arguing that stability and constitutional veneration, among other factors, were paramount. Most recall Madison as having won the debate. But at least 18 states throughout American history have adopted a Jeffersonian model …

The Inadequacy Of The Impossible: Obtaining Post-Conviction Dna Testing In Alabama, Trena Riley

Cardozo Law Review

No abstract provided.

Shelter From The Storm: Human Rights Protections For Single-Mother Families In The Time Of Covid-19, Theresa Glennon, Alexis Fennell, Kaylin Hawkins, Madison Mcnulty

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

COVID-19’s arrival, and the changes it has unleashed, reveal how longstanding legal and policy decisions produced structural inequalities that have left so many families, and especially single-parent families with children, all too insecure. The fragility of single-mother families is amplified by the multifaceted discrimination they face. While all single parents, including single fathers and other single relatives who are raising children, share many of these burdens, this Article focuses on the challenges confronting single mothers.

Federal policy choices stand in sharp contrast to the political rhetoric of government support for families. Social and economic policy in the twentieth century developed …

Petitions From The Grave: Why Federal Executions Are A Violation Of The Suspension Clause, Taran Wessells

William & Mary Bill of Rights Journal

This Note will address the intersection of wrongful convictions, the federal death penalty, and habeas corpus to conclude that the federal death penalty is an unconstitutional violation of the Suspension Clause of the United States Constitution. Part I of this Note will establish that Congress may not suspend the writ of habeas corpus outside of wartime. Then, Part II will show that wrongfully convicted prisoners therefore have a constitutional right to a habeas petition if they discover new, exonerating evidence. Part III will argue that because executed prisoners cannot file a habeas petition for release, executing wrongfully convicted prisoners is …

The President And Individual Rights, Mark Tushnet

William & Mary Bill of Rights Journal

No abstract provided.

The Emerging Lessons Of Trump V. Hawaii, Shalini Bhargava Ray

William & Mary Bill of Rights Journal

In the years since the Supreme Court decided Trump v. Hawaii, federal district courts have adjudicated dozens of rights-based challenges to executive action in immigration law. Plaintiffs, including U.S. citizens, civil rights organizations, and immigrants themselves, have alleged violations of the First Amendment and the equal protection component of the Due Process Clause with some regularity based on President Trump’s animus toward immigrants. This Article assesses Hawaii’s impact on these challenges to immigration policy, and it offers two observations. First, Hawaii has amplified federal courts’ practice of privileging administrative law claims over constitutional ones. For example, courts considering …

The Original Meaning Of The Habeas Corpus Suspension Clause, The Right Of Natural Liberty, And Executive Discretion, John Harrison

William & Mary Bill of Rights Journal

The Habeas Corpus Suspension Clause of Article I, Section 9, is primarily a limit on Congress’s authority to authorize detention by the executive. It is not mainly concerned with the remedial writ of habeas corpus, but rather with the primary right of natural liberty. Suspensions of the privilege of the writ of habeas corpus are statutes that vest very broad discretion in the executive to decide which individuals to hold in custody. Detention of combatants under the law of war need not rest on a valid suspension, whether the combatant is an alien or a citizen of the United States. …

Destructive Federal Decentralization, David Fontana

William & Mary Bill of Rights Journal

This Article—written for a symposium hosted by the William & Mary Bill of Rights Journal—focuses on the efforts by the Trump administration to relocate federal officials outside of Washington to reduce the capacity of the federal government. Federalism and the separation of powers are usually the twin pillars of structural constitutional law. Locating federal officials outside of Washington— federal decentralization—has been an additional tool of diffusing power that has started to gain some scholarly attention. These debates largely focus on structural constitutional law as constructive—as improving the capacity and operation of the federal and state governments. The power …

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 For Environmental Human Rights: Recognition, Implementation, And Outcomes, James R. May

Cardozo Law Review

No abstract provided.

Freedom From Thirst: A Right To Basic Household Water, Martha F. Davis

Cardozo Law Review

No abstract provided.

Rétrospectives Et Perspectives Sur La Place Du Droit Comparé Dans La Jurisprudence Du Conseil Constitutionnel, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

Marriage Mandates: Compelled Disclosures Of Race, Sex, And Gender Data In Marriage Licensing Schemes, Mikaela A. Phillips

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

This Note argues that mandatory disclosures of personal information—specifically race, sex, and gender—on a marriage license application constitute compelled speech under the First Amendment and should be subject to heightened scrutiny. Disclosing one’s race, sex, or gender on a marriage license application is an affirmative act, and individuals may wish to have their identity remain anonymous. These mandatory disclosures send a message that this information is still relevant to marriage regulation. Neither race nor gender is based in science; rather they are historical and social constructs created to uphold a system of white supremacy and heteronormativity. Thus, such statements are …