Law Commons^™

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 …

Qualified Immunity And Constitutional Structure, Katherine Mims Crocker

Faculty Publications

A range of scholars has subjected qualified immunity to a wave of criticism— and for good reasons. But the Supreme Court continues to apply the doctrine in ever more aggressive ways. By advancing two claims, this Article seeks to make some sense of this conflict and to suggest some thoughts toward a resolution.

First, while the Court has offered and scholars have rejected several rationales for the doctrine, layering in an account grounded in structural constitutional concerns provides a historically richer and analytically thicker understanding of the current qualified-immunity regime. For suits against federal officials, qualified immunity acts as a …

Windsor Beyond Marriage: Due Process, Equality & Undocumented Immigration, Anthony O'Rourke

William & Mary Law Review

The Supreme Court’s recent decision in United States v. Windsor, invalidating part of the federal Defense of Marriage Act, presents a significant interpretive challenge. Early commentators have criticized the majority opinion’s lack of analytical rigor, and expressed doubt that Windsor can serve as a meaningful precedent with respect to constitutional questions outside the area of same-sex marriage. This Article offers a more rehabilitative reading of Windsor and shows how the decision can be used to analyze a significant constitutional question concerning the use of state criminal procedure to regulate immigration.

From Windsor’s holding, the Article distills two concrete doctrinal propositions …

Subverting Symbolism: The Matthew Shepard And James Byrd, Jr. Hate Crimes Prevention Act And Cooperative Federalism, Kami Chavis Simmons

Faculty Publications

Hate crimes continue to persist in the United States and undermine the traditions and values to which the country aspires. Until recently, however, the stringent jurisdictional limitations of existing federal legislation made it difficult for the federal government to prosecute these crimes. In October 2009, President Obama signed into law the Matthew Shepard James Byrd Jr., Hate Crimes Prevention Act (the "HCPA"). The HCPA significantly expands the federal government's authority to prosecute defendants accused of hate crimes because it dispenses with a previous jurisdictional requirement that made it difficult to prosecute many such crimes. The HCPA also represents an expansion …

The Vote From Beyond The Grave, Krysta R. Edwards

William & Mary Law Review

No abstract provided.

Connecting The Dots: Grutter, School Desegregation, And Federalism, Wendy Parker

William & Mary Law Review

No abstract provided.

Reconciling What The First Amendment Forbids With What The Copyright Clause Permits: A Summary Explanation And Review, William W. Van Alstyne

Faculty Publications

No abstract provided.

Conceptual Gulfs In City Of Boerne V. Flores, Douglas Laycock

William & Mary Law Review

No abstract provided.