Law Commons^™

Winning The Battle, Winning The War, Malka Herman

William & Mary Law Review Online

This Article analyzes Derrick Bell's interest-convergence theory and its utility for lawyers when litigating for the rights of nondominant groups. The first part of this Article studies four different cases in which plaintiffs or amicus curiae chose arguments that highlighted the ways their interests converged with potential allies. The Article uses these cases as examples of four different ways that a lawyer can engage in interest-convergence litigation. The strategies examined in this Article rest on two axes: dominant/nondominant narrative convergence and natural/unnatural ally convergence. An analysis of the effects of each of these techniques makes it clear that dominant narrative …

Human Rights Due Diligence, Joanna Kulesza

William & Mary Bill of Rights Journal

Due diligence is a well-recognized, deliberately flexible standard in international law. It has been introduced to complement the system of state responsibility and the international liability framework of commitments. The latter has provided more detail to the understanding of due diligence. Together, these two systems allow for a comprehensive reading and implementation of due diligence in international law.

Two international legal regimes dictate due diligence requirements: the law on international liability and that of the law of state responsibility. These two regimes have been the focus of the United Nations' (UN) International Law Commission (ILC) since 1947, resulting in two …

Ridden With Controversy: Applying The Public Forum Doctrine To Public Transit Advertising, Remy T. B. Oliver

William & Mary Bill of Rights Journal

This Note tackles the application of the First Amendment to public transit advertising. Under the current judicial framework, the First Amendment is filtered through the "public forum doctrine" when discussing the rights of citizens to utilize government property for expressive purposes. The Note will argue that public transit advertising constitutes a "designated public forum" in most (if not all) cases. That characterization would force any content-based restrictions to be narrowly tailored to serve a compelling government interest. The natural result is a significant expansion of access to public transit advertising by interested parties. If the U.S. Supreme Court were to …

"A Novel And Controversial Technology." Artificial Face Recognition, Privacy Protection, And Algorithm Bias In Europe, Andrea Pin

William & Mary Bill of Rights Journal

R (Bridges) v. Chief Constable of South Wales Police's Court of Appeals ruling... showcases the variety and the thickness of the legal, ethical, and political considerations that lie underneath the deployment of [Artificial Face Recognition]-based police tools and its ramification within Europe and beyond. More broadly, the topic of "[f]acial recognition technologies provide[s] a useful case study of the complex and unpredictable ways that norms of procedural fairness, equality, and privacy interact when the state deploys machine-learning tools to draw inferences from otherwise unilluminating data." This Article uses Bridges as a proxy to sketch out the main legal issues …

Geofence Warrants: Geolocating The Fourth Amendment, A. Reed Mcleod

William & Mary Bill of Rights Journal

This Note begins by focusing on the technology and procedure of geofence warrants in Part I. Because an understanding of both the technology and procedure is ultimately required to make any headway in later legal analysis, this step is necessary. The heart of the legal analysis is undertaken in Parts II and III.

In Part II, this Note argues that law enforcement requests for location data require a warrant: either because of the expectation of privacy in location data proposed by cases such as Carpenter v. United States or because some courts have found that Carpenter's holding must mean …

Manipulation And The First Amendment, Helen Norton

William & Mary Bill of Rights Journal

This Article examines new conceptual tools for understanding manipulation and its harms. More specifically, Part I draws from ethicists' insights to explain how manipulation can inflict harms distinct from those imposed by coercion and deception, and to explain why addressing these distinct harms is a government interest sufficiently strong to justify appropriately tailored interventions.

Part II explores how these conceptual tools also help us understand when, how, and why government can regulate manipulation consistent with the First Amendment. As a threshold matter, note that manipulative online interfaces and related design choices may be better understood as conduct, rather than speech …

Speech Regulation By Algorithm, Enrique Armijo

William & Mary Bill of Rights Journal

The rapid convergence of speech and technology on social media platforms means it is likely the case that, either now or soon, more expressive activity will be regulated by Artificial Intelligence (AI) than by any legislature, regulator, or other government entity. Mark Zuckerberg has repeatedly told Congress and other audiences that AI is the key to resolving Facebook's content moderation challenges, envisioning a moderation regime where algorithms detect and take down speech infringing Facebook's Community Standards ex ante, that is, prior to its public posting and before it reaches other users. According to Zuckerberg, this would eventually replace its initial …

Seeking A Safe Harbor In A Widening Sea: Unpacking The Schrems Saga And What It Means For Transatlantic Relations And Global Cybersecurity, Scott J. Shackelford

William & Mary Bill of Rights Journal

The Article is structured as follows. Part I examines Schrems I (Schrems v. Data Protection Commissioner) and the fall of the Safe Harbor regime. Part II analyzes Schrems II (Data Protection Commissioner v. Facebook & Max Schrems) along with the rise and fall of Privacy Shield. Part III focuses on opportunities to bridge the data governance divide and present a united front to help ensure a free, open, interoperable, secure, and resilient vision for cyberspace.

This abstract has been adapted from the author's introduction.

Facing Injustice: How Face Recognition Technology May Increase The Incidence Of Misidentifications And Wrongful Convictions, Laura Moy

William & Mary Bill of Rights Journal

Part I of this Article explains how face recognition is used in conjunction with eyewitness identification in the law enforcement context. Part II explores how and why the growing use of face recognition technology may increase, rather than decrease, misidentifications and therefore wrongful convictions. Part III recommends policy changes that should be considered, including some of the reforms to eyewitness identification procedures that have been advanced by others.

This abstract has been adapted from the author's introduction.

If You Think Ai Won't Eclipse Humanity, You're Probably Just A Human, Gary D. Brown

William & Mary Bill of Rights Journal

Building machines that can replicate human thinking and behavior has fascinated people for hundreds of years. Stories about robots date from ancient history through da Vinci to the present. Whether designed to save labor or lives, to provide companionship or protection, loyal, capable, productive machines are a dream of humanity.

The modern manifestation of this interest in using human-like technology to advance social interests is artificial intelligence (AI). This is a paper about what that interest in AI means and how it might develop in the world of national security.

This abstract has been adapted from the author's introduction.

Docket Selection And Judicial Responsiveness: The Use Of Ai In The Colombian Constitutional Court, Pablo Rueda Saiz

William & Mary Bill of Rights Journal

This Article addresses some of the limitations of AI as a tool to preselect a long or shortlist of cases for a court at the apex of the judicial system to review. It focuses on the Colombian Constitutional Court, as an example of a court at the apex of the judicial system that has been historically responsive to claims for fundamental rights. Docket selection is an example of a classification problem using supervised learning, in which a machine groups data according to preestablished characteristics.

This Article draws from two different bodies of literature to analyze the consequences of using AI …

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 …

Appendix: Board Gender Diversity: A Path To Achieving Substantive Equality In The United States, Kimberly A. Houser, Jamillah Bowman Williams

William & Mary Law Review Online

Appendix to article in William & Mary Law Review vol. 63, no. 2 (2021), "Board Gender Diversity: A Path to Achieving Substantive Equality in the United States" by Kimberly A. Houser and Jamillah Bowen Williams.

Board Gender Diversity: A Path To Achieving Substantive Equality In The United States, Kimberly A. Houser, Jamillah Bowen Williams

William & Mary Law Review

While the European Union (EU) was founded on the concept of equality as a fundamental value in 1993, the United States was created at a time when women were considered legally inferior to men. This has had the lasting effect of preventing women in the United States from making inroads into positions of power. While legislated board gender diversity (BGD) mandates have been instituted in some EU countries, the United States has been loath to take that route, relying instead on the goodwill of corporate boards, with little progress. On September 30, 2018, however, California enacted a law that has …

The Use And Misuse Of Fiduciary Duties: Corporate Social Responsibility And The Standard Of Review, Jonathan R. Povilonis

William & Mary Business Law Review

This Article provides a crucial corrective to the “corporate social responsibility” debate, which concerns whether corporations have the obligation to protect or serve the interests of groups other than their shareholders, like employees or customers (often called “stakeholders”). Scholars on one side of the debate have repeatedly presumed that corporate directors’ fiduciary duties to shareholders play an important role in protecting shareholders from decisions that favor stakeholders at their expense. Scholars on the other side agree that fiduciary duties provide meaningful protection against unfavorable conduct but argue that directors should also owe fiduciary duties to stakeholders so they may be …

Vectors: Immunity In Commercial Aviation, Timothy M. Ravich

William & Mary Business Law Review

COVID-19 nearly wiped out demand for commercial air travel in 2020, driving down passenger traffic by a jaw-dropping 94.3% from the previous year. The airline industry thus understandably lobbied for a government bailout to manage what was nothing short of an existential crisis, with losses exceeding $35 billion. Less worthy of sympathy, however, were the ad hoc policies airlines unhelpfully put in the path of their customers even while securing for themselves $25 billion in payroll grants together with a similar sum in low-interest loans. For example, carriers refused to provide refunds or liquidate travel credits in a straightforward way …

Reforming The Visual Artists Rights Act To Protect #Streetart In The Digital Age, Ellen Matthews

William & Mary Law Review

Consider the following: Building Owner commissions Artist to paint a mural on the wall of his building. A decade later, Business buys that building from Building Owner and, unaware of details relative to Artist’s wall mural, develops plans to renovate the building for a new use. Upon hearing of Business’s attempt to alter its newly acquired property, Artist seeks an injunction to prevent Business from restoring its building in a way that would change or destroy her mural. Would a court prevent Business from altering its building due to Artist’s moral rights to her work? If the court follows the …

Endangered Claims, Brooke D. Coleman

William & Mary Law Review

Litigants—like organisms in an ecosystem—must evolve to survive our civil justice system. When procedural rules and doctrines that govern civil litigation change, litigants must respond. In some cases, litigants will adapt to the rules. In others, they will migrate to alternative fora to capitalize on the new environment’s rules. For those who cannot adapt or migrate, their claims will go extinct.

This Article chronicles the evolution story of federal civil litigation by examining how, in response to changing procedural rules and doctrines, parties and their claims adapt, migrate, or go extinct. It shows that throughout this evolution, claims by the …

Property Law For The Ages, Michael C. Pollack, Lior Jacob Strahilevitz

William & Mary Law Review

Within the next forty years, the number of Americans over age sixty-five is projected to nearly double. This seismic demographic shift will necessitate a reckoning in several areas of law and policy, but property law is especially unprepared. Built primarily for young and middle-aged white men, the common law of property has been critiqued for decades for the ways in which it oppresses or simply leaves behind people based on their race, sex, Native heritage, and more. This Article contributes a new focus on property law’s treatment of people based on their advanced age. Burdened by higher relocation costs, more …

Regulating Armed Private Militia Gatherings: A Constitutional State-Level Proposal To Promote Public Safety In A Post-Heller World, Sean Tenaglia

William & Mary Law Review

“Yesterday, in my view, was one of the darkest days in the history of our nation.” President Joseph R. Biden spoke these words following the January 6, 2021 riots at the U.S. Capitol Building that left five people, including a police officer, dead. The mob that stormed the Capitol sought to prevent Congress from certifying then-President-elect Biden’s Electoral College victory. In the weeks following the riot, investigators began arresting rioters associated with extremist right-wing militia groups, such as the Oath Keepers and Three Percenters. While January 6, 2021, can accurately be labeled a dark day in American history, the events …

Shape Mark (Trade Dress) Distinctiveness: A Comparative Inquiry Into U.S. And E.U. Trademark Law, Qadir Qeidary

William & Mary Business Law Review

Nowadays, the increasing application of visual elements, as non-traditional trademarks, to convey commercial information has brought about some new challenges to pioneer legal systems. In this regard, the question of shape marks’ (trade dress) distinctiveness has also caused some hot debates in U.S. and EU trademark law. Indeed, the most challenging legal question before those legal jurisdictions is about the method of transplanting the concept of trademark distinctiveness into the mechanism through which shape marks, as visual mediums, perform a trademark communicative function. Technically, the indefinite nature of shape marks or trade dress marks and lack of a definitive or …

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 …

Lending A Hand Instead Of Breaking The Bank: The Imperative Need To Resolve The Circuit Split For Determining Undue Hardship For Section 523(A)(8) Student Loan Discharges, Rucha Pandit

William & Mary Business Law Review

The Bankruptcy Code permits petitioners to discharge their student debts if they are able to demonstrate that their loans impose an undue hardship. Somewhat frustratingly, the Code does not define what exactly constitutes undue hardship in the context of student loan discharges. Moreover, neither Congress nor the Supreme Court has broken its silence to offer guidance on the issue. As a result, the rest of the federal judiciary has been once again, left to its own devices.

Over the past few decades, the Brunner and totality-of-the-circumstances tests have emerged as the standards that federal circuits choose between to assess whether …

Regulatory Competition And State Capacity, Martin W. Sybblis

William & Mary Business Law Review

This Article explores an underlying tension in the regulatory competition literature regarding why some jurisdictions are more attractive to firms than others. It pays special attention to offshore financial centers (OFCs). OFCs court the business of nonresidents, offer business friendly regulatory environments, and provide for minimal, if any, taxation on their customers. On the one extreme, OFCs are theorized as merely products of legislative capture— thereby lacking any meaningful agency of their own. On the other hand, OFCs are conceptualized as well-governed jurisdictions that attract investment because of the high quality of their laws and legal institutions—indicating some ability to …

Reform, Retrench, Repeat: The Campaign Against Critical Race Theory, Through The Lens Of Critical Race Theory, Vivian E. Hamilton

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

The protest movement ignited by the 2020 murder of George Floyd was of a scale unprecedented in U.S. history. The movement raised the nation’s consciousness of racial injustices and spurred promises—and the beginnings—of justice-oriented reform. Reform and racial progress, however, have rarely been linear over the course of U.S. history. Instead, they typically engender resistance and retrenchment. The response to the current justice movement is no exception. One manifestation of the retrenchment has been a rush by states to enact legislation curtailing race-related education in government workplaces and in public schools, colleges, and universities.

These legislative measures purport to prevent …

Why The Congressional Review Act Should Be Repealed, Alex Lipow

William & Mary Environmental Law and Policy Review

The Congressional Review Act (“CRA”) is a procedure that allows the political branches to quickly repeal certain regulations promulgated by administrative agencies without going through the arduous rule-making process traditionally required. Although it had been successfully used only once before 2017, President Trump and Republicans in Congress used the CRA to repeal sixteen regulations in 2017 and 2018 while President Biden and Democrats in Congress used the CRA three times in 2021. Because the CRA has been used rarely, and its central provisions are barely adjudicated in the judiciary, there are interesting legal questions about how expansively the law may …

Absurd Overlap: Snap Removal And The Rule Of Unanimity, Travis Temple

William & Mary Law Review

Snap removal employs “a literalist approach” to the statute governing the procedural mechanism for removing cases from state court to federal court. In a typical removal scenario, defendants sued in state court would have the option to be heard in federal court instead, given that certain conditions are satisfied. [S]nap removal essentially allows the defendants to forego a condition that would bar removal if they can file before the plaintiff formally notifies them of the lawsuit. This practice of removing a case before being served with formal process—essentially an act of gamesmanship of the civil procedure system—has gained appellate support …

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 …

Brigham-Kanner Property Rights Journal, Volume 10, William & Mary Law School

Brigham-Kanner Property Rights Journal

Where Theory Meets Practice

October 1-2, 2020

Panel 1: Where Theory Meets Practice: A Tribute to Henry E. Smith

Panel 2: The Housing Crisis

Lunch Roundtable: Emerging Issues in Takings and Eminent Domain Law

Panel 3: The Reach of Government's Confiscatory Powers Over Exigencies and Emergencies

Panel 4: The Risk of Unjust Compensation

Enhancing The Weather: Governance Of Weather Modification Activities Of The United States, Manon Simon

William & Mary Environmental Law and Policy Review

In the context of climate change, weather modification by cloud seeding, and in particular, precipitation enhancement techniques, has gained a renewed attention from governments. In the United States, several states run weather modification programs to secure freshwater resources and increase both crop and hydroelectricity production. Weather modification techniques were developed post–World War II, and so were the legal arrangements that govern them. Since then, weather modification law has undergone little to no reform. California and Texas are two active users of cloud-seeding technologies but employ very different governance frameworks. This Article assesses the effectiveness of weather modification governance in these …