Constitutional Law Commons^™

Our Federalism(S), Heather K. Gerken

William & Mary Law Review

No abstract provided.

Release As Remedy For Excessive Punishment, Alexander A. Reinert

William & Mary Law Review

Although the Eighth Amendment’s prohibition on “cruel and unusual” punishment means different things in different contexts, it plainly forecloses state and federal actors from choosing ex ante to impose a punishment that is either disproportionate or inconsistent with minimum standards of decency. In other words, the Eighth Amendment mandates that no punishment be imposed if the only other choice on the table is an unconstitutional punishment. Although this principle can be gleaned from the disparate strands of Eighth Amendment jurisprudence, its remedial consequence has not been fully implemented. In this Article, I propose that providing a remedy of release from …

Katz Cradle: Holding On To Fourth Amendment Parity In An Age Of Evolving Electronic Communication, Christopher R. Brennan

William & Mary Law Review

No abstract provided.

Interpretive Contestation And Legal Correctness, Matthew D. Adler

William & Mary Law Review

No abstract provided.

The "Flesh And Blood" Defense, James Erickson Evans

William & Mary Law Review

No abstract provided.

The Role Of Charity In A Federal System, Brian Galle

William & Mary Law Review

This Article critiques the prevailing justification for subsidies for the charitable sector and suggests a new alternative. Existing rationales are based on an economic model that assumes a single government whose decisions are guided by a single median voter. I argue that this theory is unpersuasive when translated to federal systems, such as the United States, in which there may instead be thousands of competing local governments.

I then attempt to construct a theory of the charitable sector that takes account of interactions between charity, local government, and national government. In this revised account, charity is most important when federalism …

Understanding Confidentiality: Program Effectiveness And The Freedom Of Information Act Exemption 4, Samuel L. Zimmerman

William & Mary Law Review

No abstract provided.

Federalism Under Obama, Gillian E. Metzger

William & Mary Law Review

No abstract provided.

Technologies Of Control And The Future Of The First Amendment, Christopher S. Yoo

William & Mary Law Review

No abstract provided.

Laws For Learning In An Age Of Acceleration, John O. Mcginnis

William & Mary Law Review

No abstract provided.

Globalization And Structure, Julian Ku, John Yoo

William & Mary Law Review

No abstract provided.

Legislating Preemption, Jamelle C. Sharpe

William & Mary Law Review

Federal preemption is perhaps the most important public law issueof the day. The stakes in preemption cases are enormous, as preemption determines whether the federal government or the statescontrol regulatory policy in a host of politically controversial contexts. Congress clearly has primary constitutional authority insetting federal preemption policy, but, for numerous political and practical reasons, cannot be solely responsible for its implementation.Determining which organ of the federal government is best at implementing preemption policy has therefore become the central preoccupation of the academic literature. While this comparative institutional analysis is certainly important in allocating preemptionpolicy-making business, it has elided a …

The Fourth Amendment Rights Of Children At Home: When Parental Authority Goes Too Far, Kristin Henning

William & Mary Law Review

Although it is virtually undisputed that children have some Fourth Amendment rights independent of their parents, it is equally clear that youth generally receive less constitutional protection than adults. In a search for continuity and coherence in Fourth Amendment jurisprudence involving minors, Professor Henning identifies three guiding principles—context, parental authority, and the minor’s capacity—that weave together children’s rights cases. She argues that parental authority too often prevails over children’srights, even when context and demonstrated capacity would supportaffirmation of those rights. Context involves both the physical settingin which Fourth Amendment protections are sought and the nature of the privacy interest at …

Citizens, United And Citizens United: The Future Of Labor Speech Rights?, Charlotte Garden

William & Mary Law Review

Within hours of its announcement, the Supreme Court’s decision in Citizens United v. FEC came under attack from progressive groups. Among these groups were some of America’s largest laborunions—even though the decision applies equally to unions and for profit corporations. The reason is clear: there exist both practical andstructural impediments that will prevent unions from benefittingfrom Citizens United to the same extent as corporations. Therefore,Citizens United stands to unleash a torrent of corporate electioneering that could drown out the countervailing voice of organized labor.

This Article, however, takes a broader view of Citizens United to explore a possible silver lining …

The Viability Of Certification In Federal Appellate Procedure, Kevin G. Crennan

William & Mary Law Review

No abstract provided.

Blowing Its Cover: How The Intelligence Identities Protection Act Has Masqueraded As An Effective Law And Why It Must Be Amended, Andrew M. Szilagyi

William & Mary Law Review

No abstract provided.

The Death Of Suspicion, Fabio Arcila Jr.

William & Mary Law Review

At the nation’s founding, search warrants and the concept of suspicion were well entrenched as a means of limiting governmental search power. This tradition largely explains why today’s Fourth Amendment law includes two foundational black letter rules: the presumptive warrant requirement and the presumptive suspicion requirement. Unfortunately, neither of these rules is correct. Certainly they have historical support, especially in the common law. But whether they reflect the totality of our historic experience is questionable, especially when civil search practices are considered. More importantly, modern developments—such as urban life and technological advancements, the rise of the regulatory state, and post-9/11 …

Avoiding Another Eldorado: Balancing Parental Liberty And The Risk Of Error With Governmental Interest In The Well-Being Of Children In Complex Cases Of Child Removal, Andrew T. Erwin

William & Mary Law Review

No abstract provided.

Contingent Constitutionalism: State And Local Criminal Laws And The Applicability Of Federal Constitutional Rights, Wayne A. Logan

William & Mary Law Review

Americans have long been bound by a shared sense of constitutional commonality, and the Supreme Court has repeatedly condemned the notion that federal constitutional rights should be allowed to depend on distinct state and local legal norms. In reality, however, federal rights do indeed vary, and they do so as a result of their contingent relationship to the diversity of state and local laws on which they rely. Focusing on criminal procedure rights in particular, this Article examines the benefits and detriments of constitutional contingency, and casts in new light many enduring understandings of American constitutionalism, including the effects of …

Randomization And Adjudication, Adam M. Samaha

William & Mary Law Review

Flipping a coin to decide a case is among the most serious forms of judicial misconduct. Yet judges react quite differently to other types of lotteries. Judges tend to tolerate or encourage deliberately random decisions in nonjudicial settings ranging from military drafts to experimental welfare requirements. Equally striking, most adjudicators now embrace randomization within their own institutions: they commonly use lotteries to assign incoming cases to each other. This practice creates a remarkable tension. Because adjudicators vary in competence and ideology, randomizing their case assignments will effectively randomize outcomes in a subset of merits decisions. We might then ask whether …

Suspicionless Border Seizures Of Electronic Files: The Overextension Of The Border Search Exception To The Fourth Amendment, Scott J. Upright

William & Mary Law Review

No abstract provided.

Federalism, Forum Shopping, And The Foreign Injury Paradox, Elizabeth T. Lear

William & Mary Law Review

This Article explores the contours of state regulatory power in the foreign injury context. The Supreme Court has long declined to question forum choice in domestic cases, apparently concluding that any other response would be inconsistent with our federalism. But move the injury offshore and the judicial deference to state regulatory supremacy evaporates. Federal judges subject forum choice in transnational tort actions to exacting scrutiny, routinely dismissing such claims on forum non conveniens grounds with no examination of the state interests at stake. This Article first considers whether the offshore nature of a foreign injury diminishes or even extinguishes traditional …

Clarifying Departmentalism: How The Framers' Vision Of Judicial And Presidential Review Makes The Case For Deductive Judicial Supremacy, David W. Tyler

William & Mary Law Review

No abstract provided.

The Content/Envelope Distinction In Internet Law, Matthew J. Tokson

William & Mary Law Review

Whether a component of an Internet communication is classified as "content" or "envelope" information determines in large part the privacy protection it receives under constitutional and statutory law. Courts and Internet law scholars have yet to offer a means of determining the content/envelope status of unique aspects of Internet communications-from email subject lines to website URLs. As a result, data with the potential to expose every website, every Internet file downloaded, and every email sent by an Internet user may be unprotected under current law.

This Article develops a legal framework for distinguishing content from envelope information in unique areas …

Corruption Of Religion And The Establishment Clause, Andrew Koppelman

William & Mary Law Review

Government neutrality toward religion is based on familiar considerations: the importance of avoiding religious conflict, alienation of religious minorities, and the danger that religious considerations will introduce a dangerous irrational dogmatism into politics and make democratic compromise more difficult. This Article explores one consideration, prominent at the time of the framing, that is often overlooked: the idea that religion can be corrupted by state involvement with it. This idea is friendly to religion but, precisely for that reason, is determined to keep the state away from religion. If the religion-protective argument for disestablishment is to be useful today, it cannot …

Leaving The Chisholm Trail: The Eleventh Amendment And The Background Principle Of Strict Construction, Kurt T. Lash

William & Mary Law Review

No abstract provided.

What Should Citizens (As Participants In A Republican Form Of Government) Know About The Constitution?, Sanford Levinson

William & Mary Law Review

No abstract provided.

Reconstructing The Dormant Commerce Clause Doctrine, Brannon P. Denning

William & Mary Law Review

In this Article, I argue that the alleged incoherence and unpredictability of the dormant Commerce Clause doctrine (DCCD) is rooted in the Supreme Court's search, through the years, for a stable set of rules enabling it to distinguish permissible from impermissible state regulations of interstate commerce and commercial actors. Its lack of success, the Article argues, is due in large part to the Court's inability to settle on the constitutional command the doctrine was to enforce. Historically, the Court would promulgate a set of rules, apply them for a time, then alter or modify them as the rules became unsatisfactory. …

Death By A Thousand Cases: After Booker, Rita, And Gall, The Guidelines Still Violate The Sixth Amendment, David C. Holman

William & Mary Law Review

No abstract provided.

Tempest In An Empty Teapot: Why The Constitution Does Not Regulate Gerrymandering, Larry Alexander, Saikrishna B. Prakash

William & Mary Law Review

Judges and scholars are convinced that the Constitution forbids gerrymandering that goes "too far"--legislative redistrictings that are too partisan, too focused on race, etc. Gerrymanders are said to be unconstitutional for many reasons-they dilute votes, they are anti-democratic, and they generate uncompetitive elections won by extremist candidates. Judges and scholars cite numerous clauses that gerrymanders supposedly violate- the Equal Protection Clause, the Guarantee Clause, and even the First Amendment. We dissent from this orthodoxy. Most of these claims rest on the notion that the Constitution establishes certain ideals about representation in legislatures and about the outcome and conduct of elections. …