Constitutional Law Commons^™

Highway Robbery: Due Process, Equal Protection, And Punishing Poverty With Driver’S License Suspensions, Thomas Capretta

William & Mary Bill of Rights Journal

No abstract provided.

The Visibility Value Of The First Amendment, Brian C. Murchison

William & Mary Bill of Rights Journal

No abstract provided.

Constitutional Injury And Tangibility, Rachel Bayefsky

William & Mary Law Review

The Supreme Court, in the 2016 case Spokeo, Inc. v. Robins, announced a framework for determining whether a plaintiff had alleged an injury that would permit entry into federal court. The Court indicated that a plaintiff, in order to have constitutional standing, needed to suffer harm that was “concrete” or “real.” In explaining how courts could ascertain whether an alleged harm was concrete, the Court created a category of “intangible” harm subject to a distinctive, and arguably more demanding, concreteness inquiry than “tangible” harm, a category that seemingly includes only physical or economic harm. In particular, Spokeo directed courts …

Constitutional Law In An Age Of Alternative Facts, Allison Orr Larsen

Faculty Publications

Objective facts—while perhaps always elusive—are now an endangered species. A mix of digital speed, social media, fractured news, and party polarization has led to what some call a “post-truth” society: a culture where what is true matters less than what we want to be true. At the same moment in time when “alternative facts” reign supreme, we have also anchored our constitutional law in general observations about the way the world works. Do violent video games harm child brain development? Is voter fraud widespread? Is a “partial-birth abortion” ever medically necessary? Judicial pronouncements on questions like these are common, and— …

The Gerrymander And The Constitution: Two Avenues Of Analysis And The Quest For A Durable Precedent, Edward B. Foley

William & Mary Law Review

It has been notoriously difficult for the United States Supreme Court to develop a judicially manageable—and publicly comprehensible—standard for adjudicating partisan gerrymandering claims, a standard comparable in this respect to the extraordinarily successful “one person, one vote” principle articulated in the Reapportionment Revolution of the 1960s. This difficulty persists because the quest has been for a gerrymandering standard that is universalistic in the same way that “one person, one vote” is: derived from abstract ideas of political theory, like the equal right of citizens to participate in electoral politics. But other domains of constitutional law employ particularistic modes of reasoning …

Gerrymandering And Association, Daniel P. Tokaji

William & Mary Law Review

No abstract provided.

Election Law “Federalism” And The Limits Of The Antidiscrimination Framework, Franita Tolson

William & Mary Law Review

If the United States Supreme Court conceived of the right to vote as an active entitlement that safeguards other fundamental rights rather than as a passive privilege that permits courts to prioritize state sovereignty over broad enfranchisement, then many of the errors that have become commonplace in our system of elections would not occur. It is unlikely, however, that the Court will take the steps necessary to extend the constitutional protections afforded to the right to vote. In recent years, the Court has sharply circumscribed Congress’s ability to protect the right to vote under the Fourteenth and Fifteenth Amendments, rejecting …

Schuette And Antibalkanization, Samuel Weiss, Donald Kinder

William & Mary Bill of Rights Journal

In Schuette v. Coalition to Defend Affirmative Action, Justice Kennedy’s controlling plurality revised the political process doctrine and ended the practice of affirmative action in Michigan. In this opinion, Kennedy followed in the Court’s tradition of invoking antibalkanization values in equal protection cases, making the empirical claims both that antibalkanization motivated the campaign to end affirmative action in Michigan and that the campaign itself would, absent judicial intervention, have antibalkanizing effects.

Using sophisticated empirical methods, this Article is the first to examine whether the Court’s claims on antibalkanization are correct. We find they are not. Support for the Michigan …

The Bergdahl Block: How The Military Limits Public Access To Preliminary Hearings And What We Can Do About It, Eric R. Carpenter

William & Mary Bill of Rights Journal

Sergeant Bowe Bergdahl and Private First Class Bradley (now Chelsea) Manning have something in common. Military officials unlawfully closed all or portions of their preliminary hearings to the public. When doing so, military officials exploited two unusual features of the military justice system, thereby denying the accused and the media of their respective Sixth Amendment and First Amendment rights to a public hearing.

The first feature is that the military justice system does not include a standing trial-level court. If there is a problem at the preliminary hearing, the accused and media have nowhere to go for help. The accused …

Legitimacy, Authority, And The Right To Affordable Bail, Colin Starger, Michael Bullock

William & Mary Bill of Rights Journal

Bail reform is hot. Over the past two years, jurisdictions around the country have moved to limit or end money bail practices that discriminate against the poor. Although cheered on by many, bail reform is vehemently opposed by the powerful bail-bond industry. In courts around the country, lawyers representing this industry have argued that reform is unnecessary, and even unconstitutional. One particularly insidious argument advanced by bail-bond apologists is that a “wall of authority” supports the proposition that “bail is not excessive merely because the defendant is unable to pay it.” In other words, authority rejects the right to affordable …

Fifty Shades And Fifty States: Is Bdsm A Fundamental Right? A Test For Sexual Privacy, Elizabeth Mincer

William & Mary Bill of Rights Journal

No abstract provided.

Quitting Cold Turkey?: Federal Preemption Doctrine And State Bans On Fda-Approved Drugs, Thomas A. Costello

William & Mary Bill of Rights Journal

No abstract provided.

The Hard Truth About The Penile Plethysmograph: Gender Disparity And The Untenable Standard In The Fourth Circuit, Lindsay Blumberg

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

No abstract provided.

The Constitution And The Language Of The Law, John O. Mcginnis, Michael B. Rappaport

William & Mary Law Review

A long-standing debate exists over whether the Constitution is written in ordinary or legal language. Yet no article has offered a framework for determining the nature of the Constitution’s language, let alone systematically canvassed the evidence.

This Article fills the gap. First, it shows that a distinctive legal language exists. This language in the Constitution includes terms, like “Letters of Marque and Reprisal,” that are unambiguously technical, and terms, like “good behavior,” that are ambiguous in that they have both an ordinary and legal meaning but are better interpreted according to the latter. It also includes legal interpretive rules such …

Being Seen Like A State: How Americans (And Britons) Built The Constitutional Infrastructure Of A Developing Nation, Daniel J. Hulsebosch

William & Mary Law Review

This Article develops the argument that the Federal Constitution of 1787 was conceptualized, drafted, and put into operation not only for American citizens but also for foreign audiences. In a world without supranational governing institutions, a constitution—at least, the Federal Constitution—might serve to promote peaceable international relations based on reciprocal trade and open credit. That at least was the Enlightenment-inflected hope.

Did it work? If early Americans engaged in constitution-making in large part to demonstrate their capacity for self-government, selfdiscipline, and commercial openness to foreign audiences, did anyone notice? Or was it all, regardless of diplomatic purposes and consistent with …

Waiting For Justice, Jeffrey Bellin

Popular Media

One man’s seven-year wait for a trial reveals the ways mandatory minimums distort our courts.

Congress, The Courts, And Party Polarization: Why Congress Rarely Checks The President And Why The Courts Should Not Take Congress’S Place, Neal Devins

Faculty Publications

No abstract provided.

The Silence Penalty, Jeffrey Bellin

Faculty Publications

In every criminal trial, the defendant possesses the right to testify. Deciding whether to exercise that right, however, is rarely easy. Declining to testify shields defendants from questioning by the prosecutor and normally precludes the introduction of a defendant’s prior crimes. But silence comes at a price. Jurors penalize defendants who fail to testify by inferring guilt from silence.

This Article explores this complex dynamic, focusing on empirical evidence from mock juror experiments—including the results of a new 400-person mock juror simulation conducted for this Article—and data from real trials. It concludes that the penalty defendants suffer when they refuse …

Protecting The Silence Of Speech: Academic Safe Spaces, The Free Speech Critique, And The Solution Of Free Association, Trevor N. Ward

William & Mary Bill of Rights Journal

No abstract provided.

Private Actors, Corporate Data And National Security: What Assistance Do Tech Companies Owe Law Enforcement?, Caren Morrison

William & Mary Bill of Rights Journal

When the government investigates a crime, do citizens have a duty to assist? This question was raised in the struggle between Apple and the FBI over whether the agency could compel Apple to defeat its own password protections on the iPhone of one of the San Bernardino shooters. That case was voluntarily dismissed as moot when the government found a way of accessing the data on the phone, but the issue remains unresolved.

Because of advances in technology, software providers and device makers have been able to develop almost impenetrable protection for their customers’ information, effectively locking law enforcement out …

The Fourth Amendment Disclosure Doctrines, Monu Bedi

William & Mary Bill of Rights Journal

The third party and public disclosure doctrines (together the “disclosure doctrines”) are long-standing hurdles to Fourth Amendment protection. These doctrines have become increasingly relevant to assessing the government’s use of recent technologies such as data mining, drone surveillance, and cell site location data. It is surprising then that both the Supreme Court and scholars, at times, have associated them together as expressing one principle. It turns out that each relies on unique foundational triggers and does not stand or fall with the other. This Article tackles this issue and provides a comprehensive topology for analyzing the respective contours of each …

Feeding The Machine: Policing, Crime Data, & Algorithms, Elizabeth E. Joh

William & Mary Bill of Rights Journal

No abstract provided.

Carpenter V. United States And The Fourth Amendment: The Best Way Forward, Stephen E. Henderson

William & Mary Bill of Rights Journal

We finally have a federal ‘test case.’ In Carpenter v. United States, the Supreme Court is poised to set the direction of the Fourth Amendment in the digital age. The case squarely presents how the twentieth-century third party doctrine will fare in contemporary times, and the stakes could not be higher. This Article reviews the Carpenter case and how it fits within the greater discussion of the Fourth Amendment third party doctrine and location surveillance, and I express a hope that the Court will be both a bit ambitious and a good measure cautious.

As for ambition, the Court …

The Unreasonable Rise Of Reasonable Suspicion: Terrorist Watchlists And Terry V. Ohio, Jeffrey Kahn

William & Mary Bill of Rights Journal

Terry v. Ohio’s “reasonable suspicion” test was created in the context of domestic law enforcement, but it did not remain there. This Essay examines the effect of transplanting this test into a new context: the world of terrorist watchlists. In this new context, reasonable suspicion is the standard used to authorize the infringement on liberty that often results from being watchlisted. But nothing else from the case that created that standard remains the same. The government official changes from a local police officer to an anonymous member of the intelligence community. The purpose changes from crime prevention to counterterrorism. …

Notice And Standing In The Fourth Amendment: Searches Of Personal Data, Jennifer Daskal

William & Mary Bill of Rights Journal

In at least two recent cases, courts have rejected service providers’ capacity to raise Fourth Amendment claims on behalf of their customers. These holdings rely on longstanding Supreme Court doctrine establishing a general rule against third parties asserting the Fourth Amendment rights of others. However, there is a key difference between these two recent cases and those cases on which the doctrine rests. The relevant Supreme Court doctrine stems from situations in which someone could take action to raise the Fourth Amendment claim, even if the particular third-party litigant could not. In the situations presented by the recent cases, by …

Horizontal Cybersurveillance Through Sentiment Analysis, Margaret Hu

William & Mary Bill of Rights Journal

This Essay describes emerging big data technologies that facilitate horizontal cybersurveillance. Horizontal cybersurveillance makes possible what has been termed as “sentiment analysis.” Sentiment analysis can be described as opinion mining and social movement forecasting. Through sentiment analysis, mass cybersurveillance technologies can be deployed to detect potential terrorism and state conflict, predict protest and civil unrest, and gauge the mood of populations and subpopulations. Horizontal cybersurveillance through sentiment analysis has the likely result of chilling expressive and associational freedoms, while at the same time risking mass data seizures and searches. These programs, therefore, must be assessed as adversely impacting a combination …

Justice Scalia's Other Standing Legacy, Tara Leigh Grove

Faculty Publications

No abstract provided.

Protests In Peril, Timothy Zick

Faculty Publications

No abstract provided.

There And Back Again? Police Reforms Through The Prism Of The Recruitment Decisions In The High Court And The Court Of Appeal, Festus M. Kinoti

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

No abstract provided.

All Employers Must Wash Their Speech Before Returning To Work: The First Amendment & Compelled Use Of Employees’ Preferred Gender Pronouns, Tyler Sherman

William & Mary Bill of Rights Journal

No abstract provided.