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Articles 1 - 30 of 7510

Full-Text Articles in Law

Managing Dissent, Timothy Zick Sep 2018

Managing Dissent, Timothy Zick

Faculty Publications

In his insightful new book, Managed Speech: The Roberts Court's First Amendment (2017), Professor Greg Magarian criticizes the Roberts Court for adopting a "managed speech" approach in its First Amendment cases. According to Professor Magarian, that approach gives too much power to private and governmental actors to manage public discourse, constrain dissident speakers, and instill social and political stability. This Article argues that at least insofar as it relates to many forms of public dissent, the managed speech approach is both deeply rooted in First Amendment jurisprudence and culturally prevalent. Historically, First Amendment jurisprudence has expressed support for narrowly ...


Judge Kavanaugh And Freedom Of Expression, Timothy Zick Aug 2018

Judge Kavanaugh And Freedom Of Expression, Timothy Zick

Popular Media

No abstract provided.


Justice Kennedy’S Controversial Judicial Philosophy, Described By A Former Clerk, Nancy Amoury Combs Jul 2018

Justice Kennedy’S Controversial Judicial Philosophy, Described By A Former Clerk, Nancy Amoury Combs

Popular Media

No abstract provided.


Beyond Gift And Bargain: Some Suggestions For Increasing Kidney Exchanges, Nathan B. Oman Jun 2018

Beyond Gift And Bargain: Some Suggestions For Increasing Kidney Exchanges, Nathan B. Oman

Faculty Publications

Each year, thousands of people in the United States die from end stage renal disease (ESRD), despite the fact that we have the medical knowledge necessary to save them. The reason is simple: these people need a kidney transplant and we have too few kidneys. Given our current technology, the only way to meet the massive annual shortfall between the number of kidneys that are donated and the number of kidneys that are necessary to save the lives of those with ESRD is to increase the number of living donations. The debate on how to do so has often pitted ...


Improving Access To Justice Via Technology, Fredric I. Lederer May 2018

Improving Access To Justice Via Technology, Fredric I. Lederer

Popular Media

No abstract provided.


The Unconstitutionality Of Criminal Jury Selection, Brittany L. Deitch May 2018

The Unconstitutionality Of Criminal Jury Selection, Brittany L. Deitch

William & Mary Bill of Rights Journal

The criminal defendant’s right to a jury trial is enshrined within the U.S. Constitution as a protection for the defendant against arbitrary and harsh convictions and punishments. The jury trial has been praised throughout U.S. history for allowing the community to democratically participate in the criminal justice system and for insulating criminal defendants from government oppression. This Article asks whether the jury selection process is consistent with the defendant-protection justification for the Sixth Amendment right to a trial by jury. Currently, the prosecution and defense share equal control over jury selection. Looking to the literal text of ...


An Illiberal Union, Sonu Bedi May 2018

An Illiberal Union, Sonu Bedi

William & Mary Bill of Rights Journal

This Article breaks new ground by applying the philosophical framework of liberal neutrality (most famously articulated by John Rawls) to the United States Supreme Court’s jurisprudence on marriage. At first blush, the Court’s decision in Obergefell v. Hodges—the culmination of marriage rights—seems to affirm a central principle of liberalism, namely equal access to marriage regardless of sexual orientation. Gays and lesbians can finally take part in an institution that celebrates the union of two committed individuals. But perversely, in its attempt to expand access to marriage, the Court has simultaneously entrenched values that are antithetical to ...


Highway Robbery: Due Process, Equal Protection, And Punishing Poverty With Driver’S License Suspensions, Thomas Capretta May 2018

Highway Robbery: Due Process, Equal Protection, And Punishing Poverty With Driver’S License Suspensions, Thomas Capretta

William & Mary Bill of Rights Journal

No abstract provided.


Beyond Headlines & Holdings: Exploring Some Less Obvious Ramifications Of The Supreme Court’S 2017 Free-Speech Rulings, Clay Calvert May 2018

Beyond Headlines & Holdings: Exploring Some Less Obvious Ramifications Of The Supreme Court’S 2017 Free-Speech Rulings, Clay Calvert

William & Mary Bill of Rights Journal

Digging behind the holdings, this Article analyzes less conspicuous, yet highly consequential aspects of the United States Supreme Court’s First Amendment rulings during the opening half of 2017. The four facets of the opinions addressed here—items both within individual cases and cutting across them—hold vast significance for future free-speech battles. Nuances of the justices’ splintering in Matal v. Tam, Packingham v. North Carolina, and Expressions Hair Design v. Schneiderman are examined, as is the immediate impact of Justice Anthony Kennedy’s Packingham dicta regarding online social networks. Furthermore, Justice Sonia Sotomayor’s solo concurrence in the threats ...


A Tale Of Two Clauses: Search And Seizure, Establishment Of Religion, And Constitutional Reason, Perry Dane May 2018

A Tale Of Two Clauses: Search And Seizure, Establishment Of Religion, And Constitutional Reason, Perry Dane

William & Mary Bill of Rights Journal

This Article dissects two developments in widely separate areas of American constitutional law—the “reasonable expectation of privacy” test for the Fourth Amendment’s Search and Seizure Clause and the “endorsement” test for the First Amendment’s Establishment Clause. These two stories might seem worlds apart, and they have not previously been systematically examined together. Nevertheless, the Article argues that they have in common at least three important symptoms of our legal culture’s deep malaise. These three phenomena occur in other contexts, too, but they appear with special clarity and a stark cumulative force in the two stories on ...


The Visibility Value Of The First Amendment, Brian C. Murchison May 2018

The Visibility Value Of The First Amendment, Brian C. Murchison

William & Mary Bill of Rights Journal

No abstract provided.


Not Today, Satan: Re-Examining Viewpoint Discrimination In The Limited Public Forum, Daniel Cutler May 2018

Not Today, Satan: Re-Examining Viewpoint Discrimination In The Limited Public Forum, Daniel Cutler

William & Mary Bill of Rights Journal

No abstract provided.


The Federal–State Standing Gap: How To Enforce Federal Law In Federal Court Without Article Iii Standing, Peter N. Salib, David K. Suska May 2018

The Federal–State Standing Gap: How To Enforce Federal Law In Federal Court Without Article Iii Standing, Peter N. Salib, David K. Suska

William & Mary Bill of Rights Journal

You, too, can sue Donald Trump under the Emoluments Clause!

Since Inauguration Day, several lawsuits have been filed against President Trump because of his refusal to divest certain assets. They assert that Trump’s business interests conflict with the Emoluments Clause of Article I. That arcane provision forbids certain federal officials from accepting any perquisite or gain from a foreign monarch or state. The suits contend, for example, that a foreign dignitary’s booking of a room at the Trump International Hotel in Washington, D.C. would constitute an unlawful emolument.

Most commentators quickly threw cold water on the prospect ...


Constitutional Injury And Tangibility, Rachel Bayefsky May 2018

Constitutional Injury And Tangibility, Rachel Bayefsky

William & Mary Law Review

The Supreme Court, in the 2016 case Spokeo, Inc. v. Robins, announced a framework for determining whether a plaintiff had alleged an injury that would permit entry into federal court. The Court indicated that a plaintiff, in order to have constitutional standing, needed to suffer harm that was “concrete” or “real.” In explaining how courts could ascertain whether an alleged harm was concrete, the Court created a category of “intangible” harm subject to a distinctive, and arguably more demanding, concreteness inquiry than “tangible” harm, a category that seemingly includes only physical or economic harm. In particular, Spokeo directed courts to ...


Whom Should We Punish, And How? Rational Incentives And Criminal Justice Reform, Keith N. Hylton May 2018

Whom Should We Punish, And How? Rational Incentives And Criminal Justice Reform, Keith N. Hylton

William & Mary Law Review

This Article sets out a comprehensive account of rational punishment theory and examines its implications for criminal law reform. Specifically, what offenses should be subjected to criminal punishment, and how should we punish? Should we use prison sentences or fines, and when should we use them? Should some conduct be left to a form of market punishment through private lawsuits? Should fines be used to fund the criminal justice system? The answers I offer address some of the most important public policy issues of the moment, such as mass incarceration and the use of fines to finance law enforcement. The ...


Borrowing In The Shadow Of Death: Another Look At Probate Lending, David Horton May 2018

Borrowing In The Shadow Of Death: Another Look At Probate Lending, David Horton

William & Mary Law Review

“Fringe” lending has long been controversial. Three decades ago, demand for subprime credit soared, and businesses started to offer high-interest rate cash advances, such as tax refund anticipation loans, payday loans, and pension loans. These products have sparked intense debate and are subject to a maze of rules.

However, in Probate Lending, published in the Yale Law Journal, a coauthor and I examined a form of fringe lending that has gone largely unnoticed: firms that pay lump sums in return for an heir or beneficiary’s interest in a pending decedent’s estate. Capitalizing on a California law that requires ...


Embracing The Chinese Exclusion Case: An International Law Approach To Racial Exclusions, Lauri Kai May 2018

Embracing The Chinese Exclusion Case: An International Law Approach To Racial Exclusions, Lauri Kai

William & Mary Law Review

No abstract provided.


Accidents And Aggregates, Lee Anne Fennell May 2018

Accidents And Aggregates, Lee Anne Fennell

William & Mary Law Review

Tort law responds to discrete, harmful events—“accidents”—by converting unruly facts into a binary on/off judgment about liability. This operation, characteristic of much of law, resembles the “thresholding” process used to convert grayscale images to black and white. It embeds decisions about how to isolate and evaluate the sample of risk-related behavior connected to the accident. This Article focuses on the implicit but powerful role that aggregation—of behavior, precautions, and events—plays in the determination of liability. These aggregative choices determine how large a slice of an injurer’s conduct tort law will capture within its viewfinder ...


Following Oregon’S Trail: Implementing Automatic Voter Registration To Provide For Improved Jury Representation In The United States, Julie A. Cascino May 2018

Following Oregon’S Trail: Implementing Automatic Voter Registration To Provide For Improved Jury Representation In The United States, Julie A. Cascino

William & Mary Law Review

No abstract provided.


Improving Education Through Devotion: A Religious Solution To Eastern Turkey's Gender Gap, Joshua E. Thomas May 2018

Improving Education Through Devotion: A Religious Solution To Eastern Turkey's Gender Gap, Joshua E. Thomas

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

Turkey has much room for improvement regarding women’s education opportunities—particularly in eastern Anatolia. Despite the Turkish Republic’s outward secular appearance, Islamic law plays an increasingly important role in society. A potential solution to the government’s sluggish progress on gender equality may lie in the utilization of their religious directorate (Diyanet). The Diyanet could issue fatwas sympathetic to women’s rights, which may more effectively reach the conservative eastern Turkish population.


The Invisible Victims Of The School-To-Prison Pipeline: Understanding Black Girls, School Push-Out, And The Impact Of The Every Student Succeeds Act, Bianca A. White May 2018

The Invisible Victims Of The School-To-Prison Pipeline: Understanding Black Girls, School Push-Out, And The Impact Of The Every Student Succeeds Act, Bianca A. White

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

No abstract provided.


Constitutional Law In An Age Of Alternative Facts, Allison Orr Larsen May 2018

Constitutional Law In An Age Of Alternative Facts, Allison Orr Larsen

Faculty Publications

Objective facts—while perhaps always elusive—are now an endangered species. A mix of digital speed, social media, fractured news, and party polarization has led to what some call a “post-truth” society: a culture where what is true matters less than what we want to be true. At the same moment in time when “alternative facts” reign supreme, we have also anchored our constitutional law in general observations about the way the world works. Do violent video games harm child brain development? Is voter fraud widespread? Is a “partial-birth abortion” ever medically necessary? Judicial pronouncements on questions like these are ...


Mutuals: An Area Of Legal Climate Change, Karl T. Muth, Andrew Leventhal Apr 2018

Mutuals: An Area Of Legal Climate Change, Karl T. Muth, Andrew Leventhal

William & Mary Business Law Review

Underappreciated in its importance and often-misunderstood in its implications, the choice between a company limited by shares and a company organized as a mutual is an important decision in sectors ranging from agriculture to banking to insurance. Adding gravity to this particular decision is the difficulty and enormous cost of corporate metamorphosis between company types later in the company’s life. The authors examine the history of the mutual form, its popularity’s rise and fall during the twentieth century, and its advantages and disadvantages in today’s environment.


"Un-Designating" Marine Sanctuaries?: Assessing President Trump's America-First Offshore Energy Strategy, Kevin O. Leske Apr 2018

"Un-Designating" Marine Sanctuaries?: Assessing President Trump's America-First Offshore Energy Strategy, Kevin O. Leske

William & Mary Environmental Law and Policy Review

No abstract provided.


Directed Tax Holidays: Economic Stimulus Or Corporate Dream?, Dakota Newton Apr 2018

Directed Tax Holidays: Economic Stimulus Or Corporate Dream?, Dakota Newton

William & Mary Business Law Review

U.S. corporations currently have more than $2.4 trillion stashed in the accounts of their overseas subsidiaries—a sum that costs the domestic economy billions of dollars every year. A directed tax holiday is one potential method of inducing repatriation of those funds and stimulating the domestic economy. Although a previous tax holiday failed to meet expectations, current proposals from the public and private sectors suggest that a directed tax holiday could fund much-needed infrastructure investment. A review and economic analysis of these proposals shows that a directed tax holiday that channels revenue into expanding and updating infrastructure will ...


Securities Fraud Embedded In The Market Structure Crisis: High-Frequency Traders As Primary Violators, Stanislav Dolgopolov Apr 2018

Securities Fraud Embedded In The Market Structure Crisis: High-Frequency Traders As Primary Violators, Stanislav Dolgopolov

William & Mary Business Law Review

This Article analyzes approaches to attaching liability for securities fraud to high-frequency traders as primary violators in connection with the current market structure crisis. One of the manifestations of this crisis pertains to inadequate disclosure of advanced functionalities offered by trading venues, as exemplified by the order type controversy. The Article’s analysis is applied to secret arrangements between trading venues and preferred traders, glitches and gaming, and the reach of the doctrine of market manipulation, and several relevant issues are also viewed from the standpoint of the integrity of the trading process. The Article concludes by arguing for a ...


A 2016 Copa America Bump For Major League Soccer? Strengthening The Case For Legal Action Arising From The Corrupted 2022 World Cup Bid, Jeff Todd, R. Todd Jewell Apr 2018

A 2016 Copa America Bump For Major League Soccer? Strengthening The Case For Legal Action Arising From The Corrupted 2022 World Cup Bid, Jeff Todd, R. Todd Jewell

William & Mary Business Law Review

Governmental and private investigations have generated evidence of corruption in the bidding process to host the 2022 FIFA World Cup, which went to Qatar rather than the United States. One economic study has shown an increase in professional soccer attendance in European countries that host the World Cup and the European Championships. Accordingly, Major League Soccer and its investor-operators could pursue tort and unfair competition claims to argue that denial of a 2022 World Cup USA will result in lowered attendance, and thus lost profits and diminished business value. Key differences in American and European soccer leagues and sports markets ...


The Schofield/Gunner Decisions And Episcopal Church Property-Splitting Litigation: Considering Proposed Improvements To The Litigation Process And The Neutral Principles Of Law Doctrine, Ten Years On, Timothy D. Watson Apr 2018

The Schofield/Gunner Decisions And Episcopal Church Property-Splitting Litigation: Considering Proposed Improvements To The Litigation Process And The Neutral Principles Of Law Doctrine, Ten Years On, Timothy D. Watson

William & Mary Business Law Review

In recent years, the Episcopal Church in the United States has seen a spate of parishes leaving the Church. Many of these departing parishes have attempted to take property with them as they leave and continue to operate independently or realign themselves with a different denomination. The Episcopal Church maintains that this property is held by the parishes on behalf of the national Church, and has generally been successful in obtaining a return of the property through legal action. In deciding these suits, state courts have skirted carefully around the contours of ecclesiastical questions; many state courts, following the Supreme ...


Race Or Party, Race As Party, Or Party All The Time: Three Uneasy Approaches To Conjoined Polarization In Redistricting And Voting Cases, Richard L. Hasen Apr 2018

Race Or Party, Race As Party, Or Party All The Time: Three Uneasy Approaches To Conjoined Polarization In Redistricting And Voting Cases, Richard L. Hasen

William & Mary Law Review

No abstract provided.


Race And Representation Revisited: The New Racial Gerrymandering Cases And Section 2 Of The Vra, Guy-Uriel E. Charles, Luis Fuentes-Rohwer Apr 2018

Race And Representation Revisited: The New Racial Gerrymandering Cases And Section 2 Of The Vra, Guy-Uriel E. Charles, Luis Fuentes-Rohwer

William & Mary Law Review

No abstract provided.