Constitutional Law Commons^™

The Bad News Of Good News Club: Obliterating The Wall Between Church & State, Kevin W. Connell

William & Mary Bill of Rights Journal

No abstract provided.

Contracting Away The First Amendment?: When Courts Should Intervene In Nondisclosure Agreements, Abigail Stephens

William & Mary Bill of Rights Journal

No abstract provided.

Considerations Of History And Purpose In Constitutional Borrowing, Robert L. Tsai

William & Mary Bill of Rights Journal

No abstract provided.

Sex-Segregation, Economic Opportunity, And Roberts V. U.S. Jaycees, Elizabeth Sepper

William & Mary Bill of Rights Journal

No abstract provided.

Constitutional Conflict And Sensitive Places, Darrell A. H. Miller

William & Mary Bill of Rights Journal

No abstract provided.

Political And Non-Political Speech And Guns, Gregory P. Magarian

William & Mary Bill of Rights Journal

No abstract provided.

The Deliberative-Privacy Principle: Abortion, Free Speech, And Religious Freedom, B. Jessie Hill

William & Mary Bill of Rights Journal

No abstract provided.

The Epistemic Function Of Fusing Equal Protection And Due Process, Deborah Hellman

William & Mary Bill of Rights Journal

The fusion of equal protection and due process has attracted significant attention with scholars offering varied accounts of its purpose and function. Some see the combination as productive, creating a constitutional violation that neither clause would generate alone. Others see the combination as merely strategic, offered to make a claim acceptable at a particular historical moment but not genuinely necessary. This Article offers a third alternative. Judges have and should bring both equal protection and due process together to learn what each clause independently requires. On this Epistemic vision of constitutional fusion, a focus on equality helps judges learn what …

Four Responses To Constitutional Overlap, Michael Coenen

William & Mary Bill of Rights Journal

Sometimes government action implicates more than one constitutional right. For example, a prohibition on religious expression might be said to violate both the Free Speech Clause and the Free Exercise Clause, a rule regarding same-sex marriage might be said to violate both equal protection and substantive due process, an exercise of the eminent domain power might be said to violate both procedural due process and the Takings Clause, a disproportionate criminal sentence based on judge-found facts might be said to violate both the defendant’s right to trial by jury and that defendant’s right against cruel and unusual punishment, and so …

Doctrinal Dynamism, Borrowing, And The Relationship Between Rules And Rights, Joseph Blocher, Luke Morgan

William & Mary Bill of Rights Journal

The study of “Rights Dynamism,” exemplified in Timothy Zick’s new book on the First Amendment’s relationship with the rest of the Bill of Rights, can enrich our understanding of constitutional rights. It also opens a door to another potentially fruitful arena: what we call “Doctrinal Dynamism.” Constitutional rights often interact and generate new meanings and applications by way of importing and exporting one another’s doctrinal rules, even when the rights themselves do not intersect directly in the context of a single case. Focusing on these doctrinal exchanges can illuminate the strengths and weaknesses of various rules, the specific interests underlying …

The Conscience Of The Baker: Religion And Compelled Speech, Ashutosh Bhagwat

William & Mary Bill of Rights Journal

No abstract provided.

Private Schools' Role And Rights In Setting Vaccination Policy: A Constitutional And Statutory Puzzle, Hillel Y. Levin

William & Mary Law Review

Measles and other vaccine-preventable childhood diseases are making a comeback, as a growing number of parents are electing not to vaccinate their children. May private schools refuse admission to these students? This deceptively simple question raises complex issues of First Amendment law and statutory interpretation, and it also has implications for other current hot-button issues in constitutional law, including whether private schools may discriminate against LGBTQ students. This Article is the first to address the issue of private schools’ rights to exclude unvaccinated children. It finds that the answer is “it depends.” It also offers a model law that states …

Symposium: Liquidating Elector Discretion, Rebecca Green

Popular Media

No abstract provided.

Associations And Cities As (Forbidden) Pure Private Attorneys General, Heather Elliott

William & Mary Law Review

The Supreme Court interprets Article III’s case-or-controversy language to require a plaintiff to show injury in fact, causation, and redressability. A plaintiff who meets that tripartite test has standing to sue and thus a personal stake in pursuing the litigation. Accordingly, in Sierra Club v. Morton, the Supreme Court prohibited pure private attorneys general: litigants who would sue without the requisite personal stake. This limitation extends to organizations. They, too, must show standing on their own account or, under Hunt v. Washington Apple Advertising Commission, identify a member with Article III standing and show how the lawsuit is germane to …

Brief Of First Amendment Scholars As Amici Curiae In Support Of Petitioner, Tabatha Abu El-Haj, Timothy Zick, Hyland Hunt

Briefs

No abstract provided.

Two Popular Democracies' "Energy Independence" Initiatives Through The Lenses Of Constitutionalism, Environmentalism, And Judicial Activism Oeuvres--A Comparative Study Of The Trump And Modi Administrations, Vidhya V. Iyer

William & Mary Environmental Law and Policy Review

The energy independence approaches by two popular democracies, the United States and India, have recently been the center of attention. This Article examines whether two Democratic leaders, the President of the United States, Donald Trump, and Prime Minister of India, Narendra Modi, have maintained constitutionalism in light of executive orders and ordinances that focus on energy independence by way of promoting coal-fired power plants rather than focusing on the environment and human health. Based on constitutional underpinnings, this Article concludes that although both leaders and their administrations may not have violated their respective constitutions, they have certainly violated notions of …

Second Guessing Double Jeopardy: The Stare Decisis Factors As Proxy Tools For Original Correctness, Justin W. Aimonetti

William & Mary Law Review Online

In Gamble v. United States, the Supreme Court reaffirmed the 170-year-old dual-sovereignty doctrine. That doctrine permits both the federal and state governments—as “separate sovereigns”—to each prosecute a defendant for the same offense. Justice Thomas concurred with the majority opinion in Gamble, but wrote separately to reject the traditional stare decisis formulation. In particular, the factors the majority used to evaluate stare decisis, in his view, amount to nothing more than marbles placed subjectively on either side of the stare decisis balancing scale. He would have preferred, instead, an inquiry into whether the precedent was demonstrably erroneous as an original matter, …

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

Popular Media

No abstract provided.

Protecting The Role Of The Press During Times Of Crisis, Mary-Rose Papandrea

William & Mary Law Review

President Trump’s daily tweets attacking the media have led many observers to express concern about the state of the press in our nation. Trump has called the press “the ... enemy of the [American] people,” encouraged a climate of hatred toward journalists at his rallies, refused to condemn Saudi Arabia for the brutal killing of reporter Jamal Khashoggi, and accused the media of writing “fake news.” The public’s trust in the institutional press has simultaneously diminished. Combined with the continuing economic challenges journalists face, the press is certainly facing some difficult times.

Nevertheless, things are not as dire as they …

The Court Should Not Let Politically Divided Times Affects Its Choices And Decisions, Erwin Chemerinsky

William & Mary Law Review

The Court should not let politically divided times affect its choices or decisions. Altering the Court’s role in politically divided times would require a definition of what qualifies as such an era and a theory of how to act in such times. Almost every era in American history could be deemed a politically divided time. Changing the Court’s role in politically divided times is inconsistent with its preeminent role: interpreting and enforcing the Constitution. This role does not change, and should not change, in politically charged moments. Indeed, history shows that the Court cannot know what is likely to lessen …

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

Popular Media

No abstract provided.

"Liberty Requires Accountability": The Appointments Clause, Lucia V. Sec, And The Next Constitutional Controversy, Michael A. Sabino

William & Mary Business Law Review

“Liberty requires accountability” is the essential precept which animates the Appointments Clause of Article II. This constitutional safeguard assures that those who exercise the sovereign power of the United States remain accountable both to the Chief Executive who appointed them and to the People who elected that President. The proviso was most recently tested in Lucia v. SEC, and, most assuredly, shall be in controversy again. After first expositing the high Court’s extensive Appointments Clause jurisprudence presaging Lucia, this Article thoroughly explores this newest Article II landmark, before concluding with commentary upon future Appointments Clause challenges expected to soon …

Time To Prune The Flora--Procedural Due Process, The Full Payment Rule And Assessable Penalties: Larson V. United States, Frank G. Colella

William & Mary Business Law Review

In Larson v. United States, the Second Circuit Court of Appeals rejected the opportunity to limit the scope of the Flora “full payment” rule when its strict application in the instant case foreclosed judicial review of the underlying tax controversy. As a result, the decision rubberstamped the IRS’s imposition of assessable penalties without any meaningful judicial review of those actions. The Article argues that the court’s decision to blindly apply the full payment rule, without considering any form of a hardship exception, effectively denied John Larson his right to due process of law as guaranteed by the Fifth Amendment …

Extrajudicial Statements And Prejudice In The Digital Age: Creating Factors To Preserve The Balance Between Attorney And State Interests In Trial Litigation, Emily R. O'Hara

William & Mary Law Review

As social media’s prevalence and usage grows within the United States, people and organizations capitalize on new media to send news to users. In 2017, 67 percent of people consumed their news from social media websites, and the rate continues to grow. Local and national news sources bring newsworthy stories to active users on social media sites such as Twitter, where users can communicate and interact with one another to promote ideas and spread information. These online accounts cover not only mundane, day-to-day news, but also salacious stories relating to civil and criminal lawsuits.

In April 2018, attorney Neal Katyal …

The Forgotten Relatives In The Fight Against Family Separation: A Constitutional Analysis Of The Statutory Definition Of Unaccompanied Minors In Immigration Detention, Alysa Williams

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

No abstract provided.

Blatantly Biased: Expanding Pena-Rodriguez To Cases Of Bias Against Sexual Orientation, Religion, And Sex, Tressa Bussio

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

No abstract provided.

Free-Speech Formalism And Social Injustice, Stephen M. Feldman

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

The Roberts Court has shifted constitutional law in a formalist direction. This Essay explains the Court’s formalism and its causes and consequences in First Amendment free-expression cases. The thesis is that the current conservative justices’ reliance on formalism intertwines with their attitudes toward public and private spheres of activity. Their attitudes toward the public-private dichotomy are, in turn, shaped by their political ideologies as well as by the contemporary practices of democratic government, which have shifted significantly over American history. Formalism contains an inherent political tilt favoring those who already wield power in the private sphere. Formalism favors the wealthy …

Protecting The States From Electoral Invasions, Drew Marvel

William & Mary Bill of Rights Journal

Since the 2016 U.S. presidential election, the threat of foreign interference in U.S. elections has loomed large in the minds of the American public. During the 2016 campaign season, Russian government-backed hackers infiltrated the networks and computers of the Democratic National Committee (DNC), the Democratic Congressional Campaign Committee (DCCC), and various campaign officials, harvesting private information and installing spyware and malware for ongoing intelligence purposes. U.S. intelligence officials have indicated that, using similar tactics, the Russian hackers also targeted election systems and officials in all fifty states, successfully breaching at least two of those states’ election systems, Illinois and Florida. …

"When The Enemy Drew Our Attention": Reconsidering Prior Restraint In The Context Of Dual Use Research Of Concern, Caine Caverly

William & Mary Bill of Rights Journal

Through 2016 and 2017, a team led by Canadian virologist David Evans, and funded by an American pharmaceutical company, attempted to synthesize the previously extinct horsepox virus. After just six months and an expenditure of $100,000, the research team was able to successfully construct the virus “using only commercially available information, technology and tools.” In January of 2018, the team went on to publish their information in an American-based journal, PLOS ONE.

The publication was controversial because it included a potential “blueprint” for the synthesis of a genetic strand in the same viral family as the highly lethal, albeit eradicated, …

Western Reconstruction And Woman Suffrage, Lorianne Updike Toler

William & Mary Bill of Rights Journal

The normal narrative of woman suffrage in the United States begins in Seneca Falls, New York, and steadily marches along through the lives and papers of the most noteworthy national suffragettes—Elizabeth Cady Stanton, Susan B. Anthony, Lucy Stone, and a handful of other women until the hard-fought passage of the Nineteenth Amendment. The six-volume History of Woman Suffrage tomes tells just such a story.

Yet the dominant narrative “overgeneralizes the experiences of the national, largely eastern leadership” and “generally neglect[s] the West, or fail[s] to evaluate its significance within the national movement.” Although the American Woman Suffrage Association was organized …