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Appealing Magna Carta
Get PDFIn 1999, Professor Richard Helmholz published Magna Carta and the Ius Commune, in which he argued that some of the ideas and language found in Magna Carta provide evidence that the early common law was engaging with the ius commune, the ancestor of modern civil law traditions. This Essay examines one piece of evidence highlighted by Helmholz and more recently by Professor Charles Donahue: that the Articles of the Barons, a preparatory document for Magna Carta, uses a phrase borrowed from canon law, appellatione remota (without possibility of appeal). Helmholz and Donahue pointed to its use as evidence that canon law formed part of the discussion when the drafters of Magna Carta were thinking about the common law. In this Essay, I argue that the use of this phrase is not actually evidence that canon law was being brought into discussions of the common law, since the phrase is used in the context of an ecclesiastical procedure. This example is nevertheless useful for highlighting some important features of Magna Carta. First, although there is a long tradition of associating Magna Carta with the common law, Magna Carta is not a text that is primarily about the common law. Rather, it contains provisions on several different types of law, including common law, forest law, and canon law, and underscores the pluralistic nature of English law in the thirteenth century. Second, the authors of the text seem to have gone to some length to keep these different types of law “discursively separate,” using common law terminology and canon law terminology only when appropriate to the context. And finally, although Roman and canon law were likely to have been part of the conversation about the contours of royal justice, they probably would have entered into the conversation at a high enough level of abstraction that they would not be visible in the text of Magna Carta. Overall, Magna Carta does not provide conclusive evidence whether contemporaries were thinking about Roman and canon law when reforming the common law
Remedying the Insular Cases: Providing Tribal Sovereignty to Unincorporated Territories to Ensure Constitutional Rights for All U.S. Nationals and Citizens
Get PDFThis Note will focus on the Supreme Court’s decisions in the Insular Cases to demonstrate the origins of denying jus soli citizenship to those born in unincorporated territories and to analyze its direct contradiction to the Fourteenth Amendment and other Supreme Court decisions. It will argue that the Court’s decisions in the Insular Cases were influenced by colonial rule and rooted in racism. Furthermore, this Note will argue that because of these influences, the continued application of the Insular Cases by Congress and the Supreme Court to deny constitutional rights for U.S. nationals and citizens born in unincorporated territories violates the Due Process Clause of the Fifth Amendment.
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Part I of this Note will provide historical and legal background through a discussion of the context surrounding the Insular Cases and the colonization of American Samoa. Part II will discuss recent applications of the Insular Cases and argue that the decisions made in the Insular Cases have been consistently applied to deny the constitutional rights of U.S. nationals and citizens born in unincorporated territories in a manner that violates the Constitution and effectively perpetuates U.S. colonial rule in the twenty-first century. Part III will argue that to end the arbitrary denial of constitutional rights and U.S. colonial rule over unincorporated territories, unincorporated territories should be granted a degree of “tribal sovereignty.” Part IV will address counterarguments arising from the arguments made throughout this Note and its proposed solution.
This abstract has been taken from the author\u27s introduction
There\u27s a New Sheriff in Town : Why Granting Qualified Immunity to Local Officials Acting Outside Their Authority Erodes Constitutional Rights and Further Deteriorates the Doctrine
Get PDFPart I traces the history of qualified immunity and the doctrine’s analytical changes over time, detailing the twofold test as it currently stands. Part II considers Large and Sweetin, comparing the courts’ approaches to essentially similar scenarios and evaluating the differences in outcome. Part III addresses the Supreme Court’s denial of the Large plaintiffs’ petition for certiorari and explicates the “scope of authority” question the Court declined to address. Part IV breaks down the decision in Large and conducts the qualified immunity analysis anew, determining that the court misapplied the doctrine regardless of its failure to consider the scope of authority inquiry and concluding that had the court correctly followed the proper analysis (as demonstrated in Sweetin), the official in Large would have rightly been denied qualified immunity for committing an unconstitutional seizure.
Part V argues that courts justifying grants of qualified immunity to undeserving low-level officials through labeling each violated right as not clearly established will result in an over-broadening of the qualified immunity doctrine with potentially dire consequences for civil rights.
Part VI suggests solutions to end this slippery slope, including a return to the order of analysis in Saucier v. Katz, an addition of a good-faith element to the existing standard, and the inclusion of the scope of authority analysis. Finally, Part VII employs recent scholarship to consider whether qualified immunity deserves to be bolstered by these solutions, or if it should be abandoned altogether as a doctrine too bereft of benefit.
This abstract has been taken from the author\u27s introduction
An Interview with Stephanie and Michael Chu
Get PDF...we formed these amazing relationships in law school and throughout our careers... We\u27re so in touch with so many people and I\u27m so thankful for that. It\u27s enriched our lives, both of our lives so much. -- Mike Chu
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Stephanie and Michael Chu were interviewed on November 16, 2023, in William & Mary Media Center’s production studio. Navigating through their illustrious careers and personal journeys was made seamless by their attentiveness and quick-witted responses. Their shared experiences at William & Mary Law School, involvement in student publications, and subsequent impactful contributions to the legal and educational sectors unfolded with vivid anecdotes and insights. The interview was not just informative but also infused with a light-hearted spirit, as jokes flowed effortlessly between the two.
They begin by describing their upbringing and how they came to W&M for law school. They discuss the close-knit community and various activities in which they participated. They describe the difficulties associated with finding jobs after graduating and the importance of showing up to support their community. They reflect on the significance of building meaningful relationships and having opportunities for creativity in both your life and your career.https://scholarship.law.wm.edu/oralhist_all/1008/thumbnail.jp
An Interview with W. Taylor Reveley, III (part one)
Get PDFYou need to understand your history, particularly if it has glorious, galvanizing, splendid elements. -- Taylor Reveley
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The first part of Reveley’s oral history took place in the Reeder Media Center in the Swem Library at William & Mary on November 30, 2023. Reveley began by discussing the circumstances of his arrival at the law school in 1998. Additionally, Reveley addressed deficiencies in buildings, in faculty and staff, difficulties with reputation and publicity, and the law school’s relationship to the main campus. The concept of the Citizen Lawyer was also extensively addressed as was the placement of the statutes of John Marshall and George Wythe in front of the law school.https://scholarship.law.wm.edu/oralhist_all/1013/thumbnail.jp
Civil Rights Without Representation
Get PDFAlthough much recent attention has been paid to qualified immunity, the biggest threat to civil rights enforcement is actually the lack of lawyers able and willing to represent people whose constitutional rights have been violated. There are small, tight-knit communities of civil rights lawyers with expertise and passion in the cities of the Great Migration, but few civil rights attorneys practice outside those urban areas. Limits on attorneys’ ability to recover fees mean that even attorneys willing to take civil rights cases will have financial incentives to decline meritorious cases if they would be expensive to litigate or if the expected damage awards are low.
People who bring civil rights cases pro se are far less likely to succeed than those with lawyers. Most pro se cases are dismissed for failure to plead cognizable claims in their complaints or for failing to prosecute their claims—bases for dismissal that do not necessarily reflect on their underlying merits.
When a meritorious pro se civil rights case is dismissed, not only the named plaintiff is harmed. Losses in these cases have negative downstream effects as well—frustrating future plaintiffs’ ability to overcome qualified immunity, prove municipal liability, and establish entitlement to injunctive relief.
Civil rights enforcement depends on lawyers’ willingness to bring cases on behalf of people whose rights have been violated. Unless and until more lawyers are willing to take these cases, abolishing qualified immunity and other proposed reforms will not achieve their intended aims. Any plan to restore the power and potential of § 1983 must include a blueprint to expand the number of lawyers who are bringing civil rights cases, expand the types of cases that they are bringing, and expand the locations where they are bringing them
A Chair with No Legs? Legal Constraints on the Competition Rule-Making Authority of Lina Khan\u27s FTC
Get PDFUpon her appointment to the chair position of the Federal Trade Commission (FTC), Lina Khan wasted little time asserting that the Agency possesses the regulatory authority to promulgate rules related to unfair methods of competition. And the President has supported the Chair’s proffered authority, requesting that the Agency use that authority to address competition concerns across the U.S. economy. Chair Khan’s interpretation of the FTC Act relies on a single case decided by the Supreme Court in 1973—National Petroleum Refiners—and judicial deference under Chevron. However, while simplistic in its logic, Chair Khan’s support for the FTC’s competition rule-making authority fails under both modern methods of statutory interpretation and on constitutional grounds.
This Article looks at the history of FTC competition rulemaking in the shadow of National Petroleum and reconsiders the FTC’s rule-making authority under a modern statutory interpretation of the FTC Act. This Article establishes that, even after applying the National Petroleum Court’s purposive approach to statutory interpretation under the Court’s modern precedents, the FTC wields far less rule-making power, if any. Moreover, the modern Court’s renewed interest in nondelegation, violations of the constitutional separation of powers by administrative agencies, and the Court’s resuscitation of the major questions doctrine over the last eight years all suggest that to have competition rulemaking authority, the FTC requires not Chevron deference, but rather a congressional grant of such authority