Law Commons^™

Remedying The Insular Cases: Providing Tribal Sovereignty To Unincorporated Territories To Ensure Constitutional Rights For All U.S. Nationals And Citizens, Allison Ripple

William & Mary Bill of Rights Journal

This 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 …

Civil Rights Without Representation, Joanna C. Schwartz

William & Mary Law Review

Although 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 …

Decolonizing Equal Sovereignty, Rosa Hayes

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

In Shelby County v. Holder, 570 U.S. 529 (2013), the Supreme Court announced that a tradition of equal sovereignty among the states prohibits unwarranted federal intrusions into state sovereignty and invoked this newly created doctrine to strike down Section 4(b) of the Voting Rights Act. Scholarly critiques in Shelby County’s immediate aftermath debated the constitutional validity of the Court’s equal sovereignty reasoning and warned of the dire threat the VRA’s effacement posed to voting rights—concerns that recent litigation have vindicated.

But other recent litigation suggests that, abstracted from its problematic and consequential origins, equal sovereignty may be deployed …

Given Equal Weight Under The Law: Expanding Title Vii Protections To Prohibit Weight Discrimination, Chelsea L. Yedinak

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

Approximately half of Americans have an overweight or obese body mass index (BMI), yet weight discrimination is legal in nearly every jurisdiction. This means employers can set BMI limits, maximum weights, waist sizes, and more with no legal consequences. This Note examines the history of anti-fat bias and weight discrimination and how that motivates weight discrimination in employment and in the law generally. It then discusses possible solutions. Currently, most scholars propose prohibiting weight discrimination on a state level through legislation similar to Michigan’s Elliott-Larsen Civil Rights Act or on a federal level by recognizing obesity as a disability protected …

The Legal Origins Of Catholic Conscientious Objection, Jeremy Kessler

William & Mary Bill of Rights Journal

This Article traces the origins of Catholic conscientious objection as a theory and practice of American constitutionalism. It argues that Catholic conscientious objection emerged during the 1960s from a confluence of left-wing and right-wing Catholic efforts to participate in American democratic culture more fully. The refusal of the American government to allow legitimate Catholic conscientious objection to the Vietnam War became a cause célèbre for clerical and lay leaders and provided a blueprint for Catholic legal critiques of other forms of federal regulation in the late 1960s and early 1970s—most especially regulations concerning the provision of contraception and abortion.

Over …

Assessing The Racial Implications Of Ncaa Academic Measures, Timothy Davis

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

In 1983, the NCAA’s adoption of heightened initial eligibility standards for incoming intercollegiate athletes was met with applause and criticism. Proponents lauded the measure as a legitimate means of restoring academic integrity within intercollegiate athletics. Opponents questioned whether seemingly racially neutral eligibility standards had a disproportionately negative impact on African American athletes. It is against this backdrop that the Article examines the racial implications of the NCAA’s past and present academic standards.

These standards consist of initial eligibility rules, progress-toward-degree requirements, the graduation success rate, and academic progress rate, the latter two of which comprise the NCAA’s Academic Performance Program. …

What's Wrong With The Ncaa's New Transgender Athlete Policy?, Erin Buzuvis

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

In 2022, the NCAA changed its long-standing policy permitting transgender athletes to participate in teams that correspond to their affirmed gender. For twelve years, the NCAA permitted transgender women to participate in women’s sports events under NCAA control, so long as they first underwent a year of androgen suppression. Starting in 2020, however, a political movement to ban transgender women and girls from competing in women’s sport, galvanized by backlash against a single collegiate swimmer, has challenged NCAA’s inclusive approach. Rather than demonstrate leadership and support for rights of transgender women to compete, the NCAA revised its policy to one …

Title Ix & Disparate Impact: The Harmful Effects Of Abstinence-Centric Education, Olivia S. Lanctot

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

Throughout the United States, schools are failing to provide students with comprehensive sex education that equips student with the life skills necessary for healthy relationships. This shortcoming has numerous psychological, emotional, and physical health consequences for the American youth. This Note will focus on how abstinence-centric curricula can influence sexual and teen dating violence. Presently, only one state requires instruction on consent, leaving most students to first encounter consent education or anti-harassment training in higher education institutions or the workplace. In light of the high rates of violence many young people experience before turning eighteen, this instruction often comes too …

Abortion, Sterilization, And The Universe Of Reproductive Rights, Melissa Murray

William & Mary Law Review

In recent years, a new narrative associating reproductive rights with the eugenics movement of the 1920s has taken root. As this narrative maintains, in the 1920s, Margaret Sanger, a pioneer of the modern birth control movement, joined forces with the eugenics movement to market family planning measures to marginalized minority communities.

Although the history undergirding this narrative is incomplete and misleading, the narrative itself has flourished as the debate over the continued vitality of reproductive rights has unfolded in the United States. Indeed, in just the last three years, a member of the United States Supreme Court and a number …

No Child Left Behind Bars: Applying The Principles Of Strict Scrutiny When Sentencing Juveniles Tried As Adults, Max Chu

William & Mary Law Review

The Commonwealth of Virginia was the first in the nation to pass legislation that provides judges with the discretion to veer away from the mandatory minimum sentence and to impose trauma-informed and age-appropriate sentences for juvenile offenders convicted of felonies and tried as adults. Although Virginia’s new law, House Bill 744 (HB 744), is a pioneering step in the right direction, this Note argues that the law may now provide judges with too much discretion. In other words, HB 744 alone, without more guidance, does not go far enough to protect the rights of juvenile offenders.

Therefore, this Note proposes …

Fourth Amendment Infringement Is Afoot: Revitalizing Particularized Reasonable Suspicion For Terry Stops Based On Vague Or Discrepant Suspect Descriptions, Caroline E. Lewis

William & Mary Law Review

In Terry v. Ohio, the Supreme Court granted law enforcement broad power to perform a limited stop and search of someone when an officer has reasonable suspicion that the person is engaged in criminal activity. The resulting “Terry stop” created a way for police officers to investigate a suspicious person without requiring full probable cause for an arrest. The officer need only have “reasonable suspicion supported by articulable facts” based on the circumstances and the officer’s policing “experience that criminal activity may be afoot.” Reasonable suspicion is—by design—a broad standard, deferential to police officers’ judgment. Law enforcement officers …

What The Lawyer Well-Being Movement Could Learn From The Americans With Disabilities Act, Alex B. Long

William & Mary Law Review Online

Perhaps the central theme in all of the lawyer well-being literature is the profession's need to create a culture in which lawyers are proactive about taking care of themselves. This necessarily involves reducing some of the stigma associated with mental health issues so that lawyers feel comfortable to seek help when needed and to otherwise be mindful of their own well-being. The trick, obviously, is adopting an approach that meaningfully addresses the problems of mental health issues within the profession without further stigmatizing mental health issues more generally. This Article argues that despite its admirable efforts, the legal profession has …

Blocking The Ballot Box: The Republican War On Voting Rights, Brendan Williams

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

This Article addresses threats to the right to vote that have arisen since 2018, when voter suppression efforts were key to denying Stacey Abrams, the Black Democratic nominee, victory over Republican Brian Kemp in the Georgia gubernatorial race, while Kemp, in administering his own election while Georgia’s Secretary of State, “laid out a chilling blueprint of voting suppression for other states to follow.”

This Article begins by examining the early Republican voter intimidation tactics that resulted in a consent decree, as these can be viewed as part of a continuum to the present day. It discusses the two U.S. Supreme …

Resistance Is Not Futile: Challenging Aapi Hate, Peter H. Huang

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

This Article analyzes how to challenge AAPI (Asian American Pacific Islander) hate—defined as explicit negative bias in racial beliefs towards AAPIs. In economics, beliefs are subjective probabilities over possible outcomes. Traditional neoclassical economics view beliefs as inputs to making decisions with more accurate beliefs having indirect, instrumental value by improving decision-making. This Article utilizes novel economic theories about belief-based utility, which economically captures the intuitive notion that people can derive pleasure and pain directly from their and other people’s beliefs. Even false beliefs can offer comfort and reassurance to people. This Article also draws on interdisciplinary and multidisciplinary theories …

An Unfulfilled Promise: Section 1557'S Failure To Effectively Confront Discrimination In Healthcare, Majesta-Doré Legnini

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

When the Patient Protection and Affordable Care Act passed, it offered a broad promise to provide access to quality care on a nondiscriminatory basis. To achieve nondiscrimination, Congress included Section 1557, which integrated the nondiscrimination protections granted under Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments, Section 504, and the Age Discrimination Act. The language of the statute has proved that the section cannot achieve its broad promise. Covering only intentional discrimination and usually interpreted to divide the standard so that intersectional discrimination cannot be redressed, Section 1557 fails to address discrimination in …

Ballots In An Unfamiliar Language And Other Things That Make No Sense: Interpreting How The Voting Rights Act Undermines Constitutional Rights For Voters With Limited English Proficiency, Abigail Hylton

William & Mary Bill of Rights Journal

This Note will argue that the current federal scheme for determining the baseline resources that a state must provide to voters with limited English proficiency is unconstitutional. Specifically, the Voting Rights Act neglects to require adequate translation and interpretation services for many voters with limited English proficiency. Such failure to adequately support this group of citizens throughout the election process effectively excludes them from the democratic process and deprives them of their constitutional right to vote. Whether this group of voters has access to translated materials currently hinges on the language they speak, their nationality, and their geographic location; the …

To Bar Or Not To Bar: Title I Of The Ada And After-Acquired Evidence Of A Plaintiff's Failure To Satisfy Job Prerequisites, Kathryn Johnson-Monfort

William & Mary Business Law Review

Through enactment of Title I of the Americans with Disabilities Act (ADA) in 1990, Congress unequivocally resolved to prohibit discrimination on the basis of disability in the workplace. However, distortions have since created loopholes through which disability-based employment discrimination may freely slip. An enforcement regulation promulgated by the Equal Employment Opportunity Commission (EEOC) enables such circumvention of the ADA by creating an additional prima facie requirement: a plaintiff must not only be able to perform the essential functions of the position as required by the statute, but must also satisfy all job-related requirements of the position as demanded by the …

Undue Deference To States In The 2020 Election Litigation, Joshua A. Douglas

William & Mary Bill of Rights Journal

COVID-19 has wreaked havoc on so much of our lives, including how to run our elections. Yet the federal courts have refused to respond appropriately to the dilemma that many voters faced when trying to participate in the 2020 election. Instead, the courts—particularly the U.S. Supreme Court and the federal appellate courts—invoked a narrow test that unduly defers to state election administration and fails to protect adequately the fundamental right to vote.

In constitutional litigation, a law usually must satisfy a two-part test: (1) does the state have an appropriate reason for the law and (2) is the law properly …

Shelter From The Storm: Human Rights Protections For Single-Mother Families In The Time Of Covid-19, Theresa Glennon, Alexis Fennell, Kaylin Hawkins, Madison Mcnulty

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

COVID-19’s arrival, and the changes it has unleashed, reveal how longstanding legal and policy decisions produced structural inequalities that have left so many families, and especially single-parent families with children, all too insecure. The fragility of single-mother families is amplified by the multifaceted discrimination they face. While all single parents, including single fathers and other single relatives who are raising children, share many of these burdens, this Article focuses on the challenges confronting single mothers.

Federal policy choices stand in sharp contrast to the political rhetoric of government support for families. Social and economic policy in the twentieth century developed …

Petitions From The Grave: Why Federal Executions Are A Violation Of The Suspension Clause, Taran Wessells

William & Mary Bill of Rights Journal

This Note will address the intersection of wrongful convictions, the federal death penalty, and habeas corpus to conclude that the federal death penalty is an unconstitutional violation of the Suspension Clause of the United States Constitution. Part I of this Note will establish that Congress may not suspend the writ of habeas corpus outside of wartime. Then, Part II will show that wrongfully convicted prisoners therefore have a constitutional right to a habeas petition if they discover new, exonerating evidence. Part III will argue that because executed prisoners cannot file a habeas petition for release, executing wrongfully convicted prisoners is …

The President And Individual Rights, Mark Tushnet

William & Mary Bill of Rights Journal

No abstract provided.

Resilience Justice And Community-Based Green And Blue Infrastructure, Craig Anthony Arnold, Resilience Justice Project Researchers

William & Mary Environmental Law and Policy Review

The environmental conditions of marginalized communities, particularly low-income communities of color, make those communities disproportionately more vulnerable to major disturbances and changes, such as climate change, health crises, pollution releases, disasters, economic shocks, and social and political upheaval. Many of the most important movements for justice with respect to environmental conditions, including environmental justice, disaster justice, and climate justice, are connected to broader movements for racial and social justice, asserting that Black and Brown lives matter. These movements seek to confront, dismantle, and reform systems of racism, colonialism, and structural inequality.

In particular, low-income communities of color have inequitably less …

Blurred Lines: Disparate Impact And Disparate Treatment Challenges To Subjective Decisions-- The Case Of Reductions In Force, Allan King, Alexandra Hemenway

William & Mary Business Law Review

Subjective employment decisions may be challenged under disparate treatment (intentional discrimination) and/or disparate impact (the discriminatory consequences of a neutral policy) theories of discrimination. However, these theories and supporting evidence often are conflated when the criteria for selecting employees are ill-defined or unrecorded. In those instances, the process by which employees are selected merges with the selections themselves, these legal theories converge as well. This Article critically discusses how courts have struggled to distinguish these theories in cases alleging a discriminatory reduction in force. It suggests how these cases should be submitted to juries, to preserve the liability and remedies …

Redliking: When Redlining Goes Online, Allyson E. Gold

William & Mary Law Review

Airbnb’s structure, design, and algorithm create a website architecture that allows user discrimination to prevent minority hosts from realizing the same economic benefits from short-term rental platforms as White hosts, a phenomenon this Article refers to as “redliking.” For hosts with an unused home, a spare room, or an extra couch, Airbnb provides an opportunity to create new income streams and increase wealth. Airbnb encourages prospective guests to view host photographs, names, and personal information when considering potential accommodations, thereby inviting bias, both implicit and overt, to permeate transactions. This bias has financial consequences. Empirical research on host earning rates …

Marriage Equality's Lessons For Social Movements And Constitutional Change, William N. Eskridge Jr.

William & Mary Law Review

The marriage equality movement won its first state victory in 2003, and within a dozen years fifty states were handing out marriage licenses. The swiftness of the constitutional triumph was only possible because public opinion underwent a sea change in that period. Sexual and gender minorities achieved this remarkable turnaround once a critical mass, widely dispersed in the country, came out of their closets as committed couples (often raising children), and mainstream America found their stories more consistent with their own lives than they did a generation earlier. Other lessons of marriage equality’s success, however, are how hard it is …

Paternalism, Tolerance, And Acceptance: Modeling The Evolution Of Equal Protection In The Constitutional Canon, John Tehranian

William & Mary Law Review

This Article proposes a legal taxonomy through which we can model changes in interpretations and applications of antidiscrimination principles to best understand the evolution of equal protection doctrine. The goal for doing so is two-fold. First, through a careful exegesis of a wide range of equal protection cases from the past hundred and fifty years, the analysis provides a positive theory to chart how respect for minority rights can progress within a given doctrinal space. Second, the analysis provides an unabashedly normative assessment of how closely a given legal regime comes to accepting and celebrating the inherent dignitary interests of …

From Civil Rights To Blackmail: How The Civil Rights Attorney's Fees Awards Act Of 1976 (42 U.S.C. § 1988) Has Perverted One Of America's Most Historic Civil Rights Statutes, Steven W. Fitschen

William & Mary Bill of Rights Journal

For fourteen years, members of Congress repeatedly introduced legislation directed at a single subject. A key underpinning for the necessity of the legislation was provided by the opinions of two Supreme Court justices. Yet, for the past nine years, Congress has gone silent on the same topic. This Article argues that it is past time for Congress to reconsider this topic, and that if it will not do so, the Supreme Court can rectify the situation without engaging in judicial legislation.

Perhaps the best view of Congress's efforts can be seen by examining the high-water mark of those efforts, which …

Force-Feeding Pretrial Detainees: A Constitutional Violation, Bryn L. Clegg

William & Mary Law Review

No abstract provided.

Section 1983 & Qualified Immunity: Qualifying The Death Of Due Process And America's Most Vulnerable Classes Since 1871. Can It Be Fixed?, Gabrielle Pelura

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

No abstract provided.

The First Amendment And The Roots Of Lgbt Rights Law: Censorship In The Early Homophile Era, 1958-1962, Jason M. Shepard

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

Long before substantive due process and equal protection extended constitutional rights to homosexuals under the Fourteenth Amendment, in three landmark decisions by the Supreme Court of the United States, First Amendment law was both a weapon and shield in the expansion of LGBT rights. This Article examines constitutional law and “gaylaw” from the perspective of its beginning, through case studies of One, Inc. v. Olesen (1958), Sunshine Book Co. v. Summerfield (1958), and Manual Enterprises, Inc. v. Day (1962). In protecting free press rights of sexual minorities to use the U.S. mail for mass communications, the Warren Court’s liberalization of …