Law and Politics Commons^™

Becoming A Doctrine, Allison Orr Larsen

Faculty Publications

On the last day of the 2021–22 Term, the Supreme Court handed down a decision on “the major questions doctrine” and granted certiorari to hear a case presenting “the independent state legislature doctrine”—neither of which had been called “doctrines” there before. This raises a fundamental and underexplored question: how does a doctrine become a doctrine? Law students know the difference between doctrinal classes and seminars, but how does an idea bantered about in a seminar (say, about agencies deciding major questions) become a “doctrine” complete with judicial tests, steps, and exceptions? Taking an analogy to medicine, when does …

Faux Advocacy In Amicus Practice, James G. Dwyer

Faculty Publications

Amicus brief filing has reached “avalanche” volume. Supreme Court Justices and lower court judges look to these briefs particularly for non-case-specific factual information––“legislative facts”—relevant to a case. This Article calls attention to a recurrent yet unrecognized problem with amicus filings offering up legislative facts in the many cases centrally involving the most vulnerable members of society—namely, non-autonomous persons, including both adults incapacitated by mental illness, intellectual disability, or other condition, and children. Some amici present themselves as advocates for such persons but use the amicus platform to serve other constituencies and causes, making false or misleading factual presentations about the …

Stephen Breyer, The Authority Of The Court And The Peril Of Politics, Harvard University Press, 2021, Louis Fisher

William & Mary Law Review Online

Louis Fisher reviewing Stephen Breyer's The Authority of the Court and the Peril of Politics (Harvard University Press, 2021).

Weaponizing En Banc, Neal Devins, Allison Orr Larsen

Faculty Publications

The federal courts of appeals embrace the ideal that judges are committed to rule-of-law norms, collegiality, and judicial independence. Whatever else divides them, these judges generally agree that partisan identity has no place on the bench. Consequently, when a court of appeals sits “en banc,” (i.e., collectively) the party affiliations of the three-judge panel under review should not matter. Starting in the 1980s, however, partisan ideology has grown increasingly important in the selection of federal appellate judges. It thus stands to reason—and several high-profile modern examples illustrate—that today’s en banc review could be used as a weapon by whatever party …

Destructive Federal Decentralization, David Fontana

William & Mary Bill of Rights Journal

This Article—written for a symposium hosted by the William & Mary Bill of Rights Journal—focuses on the efforts by the Trump administration to relocate federal officials outside of Washington to reduce the capacity of the federal government. Federalism and the separation of powers are usually the twin pillars of structural constitutional law. Locating federal officials outside of Washington— federal decentralization—has been an additional tool of diffusing power that has started to gain some scholarly attention. These debates largely focus on structural constitutional law as constructive—as improving the capacity and operation of the federal and state governments. The power …

Political Fair Use, Cathay Y. N. Smith

William & Mary Law Review

No abstract provided.

Yearning For An Independent Federal Judiciary, A. Benjamin Spencer

Popular Media

No abstract provided.

Comments On Mcgahn "A Brief History Of Judicial Appointments From The Last 50 Years Through The Trump Administration", Russell Wheeler

William & Mary Law Review Online

Donald McGahn is a respected member of the Washington D.C. legal community, known especially for his expertise in election law. He served as White House counsel in the Trump administration until October 2018 and was a key player in the Trump administration’s judicial appointments process.His article is witty, sometimes revealing, but above all a description, as he sees it, of the decades-long deterioration of the process for Senate confirmation of federal judicial nominees, with some blame assigning. He also provides a few behind-the-scenes looks at Trump administration confirmation battles, and some recommendations for easing contentiousness in— or at least, speeding …

The Death Of Non-Resident Contribution Limit Bans And The Birth Of The New Small, Swing State, George J. Somi

William & Mary Bill of Rights Journal

New Hampshire’s 1st Congressional District race in 2018 featured an eye-popping number: 96.7. That figure represents the percentage of candidate Maura Sullivan’s individual contributions derived from out-of-state, non–New Hampshire donors. In August 2018, of the $1.37 million USD of individual contributions that Sullivan had raised, only 3.3%—$46,648 USD—originated from in-state contributors. Sullivan had received individual donations amounting to $497,405 USD from Boston, $216,359 USD from New York City, $101,562 USD from the Washington, D.C. metropolitan area, and $92,371 USD from San Francisco.

In nearby Maine, campaign finance reports filed on October 15, 2019, with the Federal Election Commission (FEC) indicate …

Challenging Congress's Single-Member District Mandate For U.S. House Elections On Political Association Grounds, Austin Plier

William & Mary Law Review

No abstract provided.

We Are All Growing Old Together: Making Sense Of America's Monument-Protection Laws, Zachary Bray

William & Mary Law Review

Monuments and the laws that protect them divide Americans today as never before. American attitudes toward monuments have always been a blend of affection, insecurity, and suspicion. But Americans are now more invested in the built and natural monuments that surround us: to be for, or against, protecting certain monuments has now become a shorthand for one’s stance on a host of cultural and political issues. These changing attitudes have thrown American monument-protection laws into sharp relief. And many local, state, and federal legislators and executive officials have taken advantage of this opportunity to exploit America’s patchwork of monument-protection laws, …

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 …

Three Questions About "Stand Your Ground" Laws, Cynthia V. Ward

Faculty Publications

No abstract provided.

Filling The Ninth Circuit Vacancies, Carl Tobias

William & Mary Bill of Rights Journal

Upon Republican President Donald Trump’s inauguration, the United States Court of Appeals for the Ninth Circuit experienced some pressing appellate vacancies, which the Administrative Office of the United States Courts (AO) carefully identified as “judicial emergencies” because the tribunal resolves a massive docket. Last year’s death of the iconic liberal champion Stephen Reinhardt and the late 2017 departure of libertarian former Chief Judge Alex Kozinski—who both assumed pivotal circuit leadership roles over numerous years—and a few of their colleagues’ decision to leave active court service thereafter, mean the tribunal presently confronts four judicial emergencies and resolves most slowly the largest …

Some Form Of Punishment: Penalizing Women For Abortion, Mary Ziegler

William & Mary Bill of Rights Journal

In 2016, Donald Trump ignited a political firestorm when he suggested that women should be punished for having abortions. Although he backtracked, Trump’s misstep launched a debate about whether women have been or should be punished for having abortions. At the same time, Trump’s comments revealed that punishing women has become far more than an abstraction. In 2016, Indiana resident Purvi Patel became just the most recent visible example when she was sentenced to twenty years for feticide and child neglect for inducing an abortion.

But in spite of the furor created by Trump’s comment and Patel’s conviction, the history …

Why Congress Does Not Challenge Judicial Supremacy, Neal Devins

William & Mary Law Review

Members of Congress largely acquiesce to judicial supremacy both on constitutional and statutory interpretation questions. Lawmakers, however, do not formally embrace judicial supremacy; they rarely think about the courts when enacting legislation. This Article explains why this is so, focusing on why lawmakers have both strong incentive to acquiesce to judicial power and little incentive to advance a coherent view of congressional power. In particular, lawmakers are interested in advancing favored policies, winning reelection, and gaining personal power within Congress. Abstract questions of institutional power do not interest lawmakers and judicial defeats are seen as opportunities to find some other …

Judicial Supremacy Revisited: Independent Constitutional Authority In American Constitutional Law And Practice, Mark A. Graber

William & Mary Law Review

The Supreme Court exercises far less constitutional authority in American law and practice than one would gather from reading judicial opinions, presidential speeches, or the standard tomes for and against judicial supremacy. Lower federal court judges, state court justices, federal and state elected officials, persons charged with administering the law, and ordinary citizens often have the final say on particular constitutional controversies or exercise temporary constitutional authority in ways that have more influence on the parties to that controversy than the eventual Supreme Court decision. In many instances, Supreme Court doctrine sanctions or facilitates the exercise of independent constitutional authority …

If It Looks Like A Super Pac, Acts Like A Super Pac, And Is Restricted Like A Super Pac, Then Treat It Like A Super Pac: Why Contribution Limits On A Hybrid Pac’S Independent-Expenditure Arm Are Impermissible, Jacob N. Kipp

William & Mary Bill of Rights Journal

No abstract provided.

The Second Dimension Of The Supreme Court, Joshua B. Fischman, Tonja Jacobi

William & Mary Law Review

Describing the Justices of the Supreme Court as “liberals” and conservatives” has become so standard— and the left-right division on the Court is considered so entrenched— that any deviation from that pattern is treated with surprise. Attentive Court watchers know that the Justices are not just politicians in robes, deciding each case on a purely ideological basis. Yet the increasingly influential empirical legal studies literature assumes just that— that a left-right ideological dimension fully describes the Supreme Court. We show that there is a second, more legally-focused dimension of judicial decision making. A continuum between legalism and pragmatism also divides …

Does The 'Mcconnell Principle' Make Sense?, Jeffrey Bellin

Popular Media

No abstract provided.

Presupposing Corruption: Access, Influence, And The Future Of The Pay-To-Play Legal Framework, Allison C. Davis

William & Mary Business Law Review

Political spending, in all of its various permutations, lies at the nexus between campaign finance law and pay-to-play law. Both of these legal doctrines seek to minimize the corrupting effects of money upon elected officials and candidates, and both impose various caps and restrictions on political contributions in order to do so. Over the past half-century, however, the Supreme Court has struggled to define what sort of activity constitutes “corruption” in the political sphere. In light of its decisions in 2010’s Citizens United v. FEC and 2014’s McCutcheonv. FEC—two seminal cases that dramatically altered campaign finance regulation— the Court now …

How The Supreme Court Can Change Politics As Usual, Jeffrey Bellin

Popular Media

No abstract provided.

'"Ideology" Or "Situation Sense"? An Experimental Investigation Of Motivated Reasoning And Professional Judgment, Dan M. Kahan, David Hoffman, Danieli Evans, Neal Devins, Eugene Lucci, Katherine Cheng

Faculty Publications

This Article reports the results of a study on whether political predispositions influence judicial decisionmaking. The study was designed to overcome the two principal limitations on existing empirical studies that purport to find such an influence: the use of nonexperimental methods to assess the decisions of actual judges; and the failure to use actual judges in ideologically-biased-reasoning experiments. The study involved a sample of sitting judges (n = 253), who, like members of a general public sample (n = 800), were culturally polarized on climate change, marijuana legalization and other contested issues. When the study subjects were assigned to analyze …

Measuring Party Polarization In Congress: Lessons From Congressional Participation In Amicus Curiae, Neal Devins

Faculty Publications

First, I will detail the prevalence of party polarization and how party polarization has limited congressional interest in its institutional prerogatives vis-à-vis the executive. Second, I will discuss my research findings governing congressional amicus briefs. I will consider patterns in bipartisan filings over time (comparing the less polarized 1974–1985 Supreme Court terms with the more polarized 2002–2013 terms). I will also consider the types of issues lawmakers and their institutional counsel have pursued in their filings. This investigation will reveal a decline in briefs in institutional cases and an upswing in briefs on politically salient issues that divide the parties …

The Narrowing Of Federal Power By The American Political Capital, David Fontana

William & Mary Bill of Rights Journal

This Essay--—prepared for a symposium hosted by the William & Mary Bill of Rights Journal on the future of the District of Columbia--—argues that American federal power can be better understood by considering the features of the metropolitan area that houses the most important parts of the American federal government. In other American metropolitan areas and in most capital metropolitan areas elsewhere in the world, local life features multiple and diverse industries. Washington is the metropolitan area that houses the most important parts of the American federal government, and Washington is dominated by the government and related industries. Washington is, …

Menendez And America's Public Corruption Problem, Jeffrey Bellin

Popular Media

No abstract provided.

"Stand Your Ground" And Self Defense, Cynthia Ward

Faculty Publications

No abstract provided.

The Right To Vote: Is The Amendment Game Worth The Candle?, Heather K. Gerken

William & Mary Bill of Rights Journal

No abstract provided.

Theories Of Representation: For The District Of Columbia, Only Statehood Will Do, Mary M. Cheh

William & Mary Bill of Rights Journal

No abstract provided.

Three Questions For The "Right To Vote" Amendment, Richard Briffault

William & Mary Bill of Rights Journal

No abstract provided.