Constitutional Law Commons^™

Diagnosed With Time Is Money: Arbitrary Medicare Provisions Differentiating Observation Services From Inpatient Admissions Violate Beneficiaries’ Due Process Rights, Stephanie Masaba

William & Mary Bill of Rights Journal

No abstract provided.

Law, Religious Change, And Samesex Marriage Posted On, Nathan B. Oman

Popular Media

No abstract provided.

It’S Not Called Conduct Therapy; Talk Therapy As A Protected Form Of Speech Under The First Amendment, Warren Geoffrey Tucker

William & Mary Bill of Rights Journal

No abstract provided.

Reviewing The Magic Pipes: Angelex Ltd. V. United States, Oily Water Separators, And Constitutional Review Of Coast Guard Action, Benjamin Abel

William & Mary Bill of Rights Journal

No abstract provided.

Neither Tinker, Nor Hazelwood, Nor Fraser, Nor Morse: Why Violent Student Assignments Represent A Unique First Amendment Challenge, William C. Nevin

William & Mary Bill of Rights Journal

This Article will both (1) explore a subset of violent student speech cases that could rightly be considered under Hazelwood if only the student expression bore the sign of official school sponsorship and (2) argue for the creation of a new standard based on Hazelwood to govern non-sponsored curricular speech. Furthermore, this new standard would operate much like the current Hazelwood analysis with one key distinction: where student speech is curricular and non-sponsored in nature, the only options available to school administrators would be those representing pedagogical counter-speech. Punitive discipline, such as the suspension seen in Cuff, would not be …

Magic Words, Kiel Brennan-Marquez

William & Mary Bill of Rights Journal

Broadly speaking, this Article has two goals. The first is to demonstrate the prominence of functionalism in the interpretive practices of the Supreme Court. Reading a case like NFIB, it would be easy to conclude that the tension between labels and function reflects a deep rift in our legal order. On reflection, though, the rift turns out to be something of a mirage. While judicial opinions do occasionally employ the rhetoric of label-formalism, we are all functionalists at heart.

The Article’s second goal is to explore two exceptions to this norm. One is a faux exception—an exception to functionalism that …

Confronting Cops In Immigration Court, Mary Holper

William & Mary Bill of Rights Journal

Part I of the Article outlines the police report problem by discussing the four situations in which police reports are used in immigration court, why police reports are unreliable, and the scope of the problem. Part II discusses criminal law’s treatment of police reports, focusing on the Confrontation Clause of the Sixth Amendment, which provides the constitutional justification for excluding police reports in criminal cases. Part III discusses the use of hearsay evidence in immigration cases, where hearsay is allowed due to the characterization of removal proceedings as civil, not criminal. While there has been a trend to reject unreliable …

Snap: How The Moral Elasticity Of The Denaturalization Statute Goes Too Far, Aram A. Gavoor, Daniel Miktus

William & Mary Bill of Rights Journal

Comprehensive immigration reform is a popular topic in Congress. While many reform bills have been offered, none have addressed the significant substantive and procedural issues surrounding denaturalization, the process where the federal government may seek to have a naturalized person’s citizenship revoked in federal court if his citizenship was unlawfully or fraudulently procured.Though denaturalization serves public policy as a final check on naturalization fraud, existing law also permits the government to denaturalize an individual solely for speech and expressive association that occurs after one acquires citizenship. This provision, 8 U.S.C. § 1451(c), violates naturalized citizens’ First Amendment rights to free …

Good Faith Discrimination, Girardeau A. Spann

William & Mary Bill of Rights Journal

The Supreme Court’s current doctrinal rules governing racial discrimination and affirmative action are unsatisfying. They often seem artificial, internally inconsistent, and even conceptually incoherent. Despite a long and continuing history of racial discrimination in the United States, many of the problems with the Supreme Court’s racial jurisprudence stem from the Court’s willingness to view the current distribution of societal resources as establishing a colorblind, race-neutral baseline that can be used to make equality determinations. As a result, the current rules are as likely to facilitate racial discrimination as to prevent it, or to remedy the lingering effects of past discrimination. …

The Empirical Irony Of The Conflict Between Antidiscrimination And Religious Freedom, Nathan B. Oman

Popular Media

No abstract provided.

The (Hoped For) Shallowness Of Progressive Skepticism Towards Religious Freedom, Nathan B. Oman

Popular Media

No abstract provided.

Eaja Fees For Reasons-And-Bases Remands: The Perspective Of A Veterans' Lawyer, David E. Boelzner

Faculty Publications

No abstract provided.

The Derivative Nature Of Corporate Constitutional Rights, Margaret M. Blair, Elizabeth Pollman

William & Mary Law Review

This Article engages the two-hundred-year history of corporate constitutional rights jurisprudence to show that the Supreme Court has long accorded rights to corporations based on the rationale that corporations represent associations of people from whom such rights are derived. The Article draws on the history of business corporations in America to argue that the Court’s characterization of corporations as associations made sense throughout most of the nineteenth century. By the late nineteenth century, however, when the Court was deciding several key cases involving corporate rights, this associational view was already becoming a poor fit for some corporations. The Court’s failure …

Intellectual Property And The Presumption Of Innocence, Irina D. Manta

William & Mary Law Review

Our current methods of imposing criminal convictions on defendants for copyright and trademark infringement are constitutionally defective. Previous works have argued that due process under the Sixth Amendment requires prosecutors to prove every element of a crime beyond a reasonable doubt, including the jurisdictional element. Applying this theory to criminal trademark counterfeiting results in the conclusion that prosecutors should have to demonstrate that an infringing mark needs to have traveled in or affected interstate commerce, which currently is not mandated. Parallel to this construction of the Commerce Clause, criminal prosecutors would also have to prove that Congress has the power …

Fifty States, Fifty Attorneys General, And Fifty Approaches To The Duty To Defend, Neal Devins, Saikrishna B. Prakash

Faculty Publications

Whether a state attorney general has a duty to defend the validity of state law is a complicated question, one that cannot be decided by reference either to the oath state officers must take to support the federal Constitution or the supremacy of federal law. Instead, whether a state attorney general must defend state law turns on her own state’s laws. Each state has its own constitution, statutes, bar rules, and traditions, and not surprisingly, the duties of attorneys general vary across the states. To simplify somewhat, we believe that there are three types of duties. One set of attorneys …

Solving Batson, Tania Tetlow

William & Mary Law Review

The Supreme Court faced an important ideological choice when it banned the racial use of peremptory challenges in Batson v. Kentucky. The Court could either ground the rule in equality rights designed to protect potential jurors from stereotyping, or it could base the rule on the defendant’s Sixth Amendment right to an “impartial jury” drawn from a “fair cross-section of the community.” By choosing the equal protection analysis, the Court turned away from the defendant and the fair functioning of the criminal justice system, and instead focused on protecting potential jurors. In doing so, the Court built a fatal error …

Leak Prosecutions And The First Amendment: New Developments And A Closer Look At The Feasibility Of Protecting Leakers, Heidi Kitrosser

William & Mary Law Review

This Article revisits the free speech protections that leakers are due in light of recent commentaries and events. Among other things, the Article critiques arguments to the effect that the Obama Administration’s uptick in leak prosecutions does not threaten the system of free speech because plenty of classified information still makes its way into newspapers and the absolute number of leaker prosecutions remains very low. Such positions overlook the slanted impact that prosecutions and investigations are likely to have—and reportedly have had—on the speech marketplace. The Article also explains that even though the increase in prosecutions and other recent developments, …

The First Amendment’S Public Forum, John D. Inazu

William & Mary Law Review

The quintessential city park symbolizes a core feature of a democratic polity: the freedom of all citizens to express their views in public spaces free from the constraints of government imposed orthodoxy. The city park finds an unlikely cousin in the federal tax code’s recognition of deductions for contributions made to charitable, religious, and educational organizations. Together, these three categories of tax-exempt organizations encompass a vast array of groups in civil society.

The city park is a traditional public forum under First Amendment doctrine, and the charitable, educational, and religious deductions under the federal tax code function much like a …

National Security Information Disclosures And The Role Of Intent, Mary-Rose Papandrea

William & Mary Law Review

In the public discourse, the perceived intent of those who disclose national security information without authorization plays an important role in whether they are labeled as heroes or traitors. Should it matter whether Chelsea (formerly Bradley) Manning leaked government information to WikiLeaks knowing that our enemies might benefit from the information? Is it relevant that Edward Snowden believed—or that a reasonable person would believe—that the topsecret government surveillance programs he revealed were illegal, or that the public value in knowing about these programs outweighed any risk of harm to national security? This Article examines whether intent—and what kind of intent— …

Internet Exceptionalism: An Overview From General Constitutional Law, Mark Tushnet

William & Mary Law Review

This Article considers First Amendment Internet exceptionalism. I use that term in what I think is a reasonably standard way to refer to the question of whether the technological characteristics of the Internet (and, more generally, twenty-first-century information technologies) justify treating regulation of information dissemination through the Internet differently from regulation of such dissemination through nineteenth- and twentieth-century media, such as print, radio, and television. My aim here is not to provide an answer to that question, but to identify several subquestions whose answers must be part of the larger answer.

New Problems For Subsidized Speech, Joseph Blocher

William & Mary Law Review

The constitutionality of conditional offers from the government is a transsubstantive issue with broad and growing practical implications, but it has always been a particular problem for free speech. Recent developments suggest at least three new approaches to the problem, but no easy solutions to it. The first approach would permit conditions that define the limits of the government spending program, while forbidding conditions that leverage funding so as to regulate speech outside the contours of the program. This is an appealing distinction, but runs into some of the same challenges as public forum analysis. The second approach would treat …

The Marrow Of Tradition: The Roberts Court And Categorical First Amendment Speech Exclusions, Gregory P. Magarian

William & Mary Law Review

No abstract provided.

When Are Constitutional Rights Non-Absolute? Mccutcheon, Conflicts, And The Sufficiency Question, Mark D. Rosen

William & Mary Law Review

No abstract provided.

Producing Speech, Ashutosh Bhagwat

William & Mary Law Review

In recent years, a large number of disputes have arisen in which parties invoke the First Amendment, but the government action they challenge does not directly regulate “speech,” as in communication. Instead, the government is restricting the creation of communicative materials that are intended to be disseminated in the future—in other words, they restrict producing speech. Examples of such disputes include bans on recording public officials in public places, Los Angeles County’s ban on bareback (condom-less) pornography, restrictions on tattoo parlors, so-called “Ag-Gag” laws forbidding making records of agricultural operations, as well as many others. The question this Article addresses …

The Zombie First Amendment, Julie E. Cohen

William & Mary Law Review

Scholarly and popular critiques of contemporary free speech jurisprudence have noted an attitude of unquestioning deference to the political power of money. Rather than sheltering the ability to speak truth to power, they have lamented, the contemporary First Amendment shelters power’s ability to make and propagate its own truth. This Article relates developments in recent First Amendment jurisprudence to a larger struggle now underway to shape the distribution of information power in the era of informational capitalism. In particular, it argues that cases about political speech—cases that lie at the First Amendment’s traditional core—tell only a small part of the …

First Amendment Expansionism, Leslie Kendrick

William & Mary Law Review

In recent years, many litigants have found the First Amendment to be a useful tool. One could mention pornography actors, tattoo artists, death row inmates, and corporate interests from small photography shops to meat trade associations to cigarette manufacturers to pharmaceutical companies. All have raised First Amendment claims in the last few years, and nearly all of them have met with some level of success.

These claims are examples of what has been called First Amendment opportunism, where litigants raise novel free speech claims that may involve the repackaging of other types of legal arguments. To the extent that many …

Reconciling Privacy And Speech In The Era Of Big Data: A Comparative Legal Analysis, Ronald J. Krotoszynski Jr.

William & Mary Law Review

In both the United States and the nations of Western Europe, significant constitutional commitments safeguard both expressive freedom (including freedom of speech and of the press) and also a generalized constitutional right of privacy. With some regularity, however, these rights will come into conflict, as the protection of one right can be achieved only at the cost of abridging or denying the other. When a government official or public figure objects to the publication of an embarrassing photograph, perhaps taken by an invasive paparazzo, it is simply not possible to fully vindicate both a newspaper’s interest in publishing the photograph …

The Right Of Publicity And The First Amendment In The Modern Age Of Commercial Speech, Martin H. Redish, Kelsey B. Shust

William & Mary Law Review

The so-called right of publicity gives individuals a legally protected interest against commercially motivated communicators’ use of their names or likenesses for purposes of commercial gain. Although the right is sometimes viewed as a subcategory of the right of privacy, it may be exercised by the best known celebrities, as well as by the most private individual. It is therefore more properly characterized as a property interest in one’s name and likeness than a protection of one’s privacy.

In order to satisfy the concerns of the First Amendment right of free expression, however, the statutory and common law development of …

Why Data Privacy Law Is (Mostly) Constitutional, Neil M. Richards

William & Mary Law Review

Laws regulating the collection, use, and disclosure of personal data are (mostly) constitutional, and critics who suggest otherwise are wrong. Since the New Deal, American law has rested on the wise judgment that, by and large, commercial regulation should be made on the basis of economic and social policy, rather than blunt constitutional rules. This has become one of the basic principles of American constitutional law. Although some observers have suggested that the United States Supreme Court’s recent decision in Sorrell v. IMS Health Inc. changes this state of affairs, such readings are incorrect. Sorrell involved a challenge to a …

The Politics And Incentives Of First Amendment Coverage, Frederick Schauer

William & Mary Law Review

No abstract provided.