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College of William & Mary Law School

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Articles 1 - 30 of 7430

Full-Text Articles in Law

Recurrent Flooding, Sea Level Rise, And The Relocation Of At-Risk Communities: Case Studies From The Commonwealth Of Virginia, Jeffrey Moore, Lauren Acker Apr 2018

Recurrent Flooding, Sea Level Rise, And The Relocation Of At-Risk Communities: Case Studies From The Commonwealth Of Virginia, Jeffrey Moore, Lauren Acker

Virginia Coastal Policy Center

No abstract provided.


Sea Level Rise And Recurrent Flooding: A Toolbox For Local Governments In Virginia, Victor Unnone, Jonathan Lubrano Apr 2018

Sea Level Rise And Recurrent Flooding: A Toolbox For Local Governments In Virginia, Victor Unnone, Jonathan Lubrano

Virginia Coastal Policy Center

No abstract provided.


Reassessing Prosecutorial Power Through The Lens Of Mass Incarceration, Jeffrey Bellin Apr 2018

Reassessing Prosecutorial Power Through The Lens Of Mass Incarceration, Jeffrey Bellin

Faculty Publications

No abstract provided.


Waterfront Property Rights: The Potential Impact Of Government Projects, Emily Messer Apr 2018

Waterfront Property Rights: The Potential Impact Of Government Projects, Emily Messer

Virginia Coastal Policy Center

No abstract provided.


Defending Jurisdiction, Scott Dodson Apr 2018

Defending Jurisdiction, Scott Dodson

William & Mary Law Review Online

In an article entitled Jurisdiction and Its Effects, I argued that jurisdiction has inherent descriptive meaning but mutable effects. In response, Professor John Preis challenges my framework on a number of grounds and offers his own presumption-based approach. In this reply, I defend my original framework and register my own skepticism of his alternative approach.


The Constitution And The Language Of The Law, John O. Mcginnis, Michael B. Rappaport Mar 2018

The Constitution And The Language Of The Law, John O. Mcginnis, Michael B. Rappaport

William & Mary Law Review

A long-standing debate exists over whether the Constitution is written in ordinary or legal language. Yet no article has offered a framework for determining the nature of the Constitution’s language, let alone systematically canvassed the evidence.

This Article fills the gap. First, it shows that a distinctive legal language exists. This language in the Constitution includes terms, like “Letters of Marque and Reprisal,” that are unambiguously technical, and terms, like “good behavior,” that are ambiguous in that they have both an ordinary and legal meaning but are better interpreted according to the latter. It also includes legal interpretive rules ...


The Early Eight And The Future Of Consumer Legal Activism To Fight Modern-Day Slavery In Corporate Supply Chains, Andrew G. Barna Mar 2018

The Early Eight And The Future Of Consumer Legal Activism To Fight Modern-Day Slavery In Corporate Supply Chains, Andrew G. Barna

William & Mary Law Review

No abstract provided.


Campbell-Ewald Co. V. Gomez: Diminishing The Derivative Sovereign Immunity Doctrine And The Social Costs Of Increasing Liability To Government Contractors, W. Logan Lewis Mar 2018

Campbell-Ewald Co. V. Gomez: Diminishing The Derivative Sovereign Immunity Doctrine And The Social Costs Of Increasing Liability To Government Contractors, W. Logan Lewis

William & Mary Law Review

No abstract provided.


The Long Arm Of Multidistrict Litigation, Andrew D. Bradt Mar 2018

The Long Arm Of Multidistrict Litigation, Andrew D. Bradt

William & Mary Law Review

Nearly 40 percent of the civil cases currently pending in federal court—now over 130,000—are part of a multidistrict litigation, or MDL. In MDL, all cases pending in federal district courts around the country sharing a common question of fact, such as the defectiveness of a product or drug, are transferred to a single district judge for consolidated pretrial proceedings, after which they are supposed to be remanded for trial. But the reality is that less than 3 percent are ever sent back because the cases are resolved in the MDL court, either through dispositive motion or mass ...


Being Seen Like A State: How Americans (And Britons) Built The Constitutional Infrastructure Of A Developing Nation, Daniel J. Hulsebosch Mar 2018

Being Seen Like A State: How Americans (And Britons) Built The Constitutional Infrastructure Of A Developing Nation, Daniel J. Hulsebosch

William & Mary Law Review

This Article develops the argument that the Federal Constitution of 1787 was conceptualized, drafted, and put into operation not only for American citizens but also for foreign audiences. In a world without supranational governing institutions, a constitution—at least, the Federal Constitution—might serve to promote peaceable international relations based on reciprocal trade and open credit. That at least was the Enlightenment-inflected hope.

Did it work? If early Americans engaged in constitution-making in large part to demonstrate their capacity for self-government, selfdiscipline, and commercial openness to foreign audiences, did anyone notice? Or was it all, regardless of diplomatic purposes and ...


Jurisdictional Idealism And Positivism, John F. Preis Mar 2018

Jurisdictional Idealism And Positivism, John F. Preis

William & Mary Law Review

“If I should call a sheep’s tail a leg, how many legs would it have? Four, because calling a tail a leg would not make it so.” This old quip, often attributed to Abraham Lincoln, captures an issue at the heart of the modern law of subject matter jurisdiction. Some believe that there is a Platonic ideal of jurisdiction that cannot be changed by judicial or legislative fiat. Others take a positivist approach and assert that jurisdiction is nothing more than whatever a legislature says it is. Who is right?

Neither and both. Although neither idealism nor positivism is ...


Brief Of Scholars Of Mormon History & Law As Amici Curiae In Support Of Neither Party, Anna-Rose Mathieson, Ben Feuer, Nathan B. Oman Mar 2018

Brief Of Scholars Of Mormon History & Law As Amici Curiae In Support Of Neither Party, Anna-Rose Mathieson, Ben Feuer, Nathan B. Oman

Appellate Briefs

No abstract provided.


Translating Legal Norms Into Quantitative Indicators: Lessons From The Global Water, Sanitation, And Hygiene Sector, Sharmila L. Murthy Feb 2018

Translating Legal Norms Into Quantitative Indicators: Lessons From The Global Water, Sanitation, And Hygiene Sector, Sharmila L. Murthy

William & Mary Environmental Law and Policy Review

No abstract provided.


Keeping The Clean Water Act Cooperatively Federal—Or, Why The Clean Water Act Does Not Directly Regulate Groundwater Pollution, Damien Schiff Feb 2018

Keeping The Clean Water Act Cooperatively Federal—Or, Why The Clean Water Act Does Not Directly Regulate Groundwater Pollution, Damien Schiff

William & Mary Environmental Law and Policy Review

No abstract provided.


California Rushes In—Keeping Water Instream For Fisheries Without Federal Law, Paul Stanton Kibel Feb 2018

California Rushes In—Keeping Water Instream For Fisheries Without Federal Law, Paul Stanton Kibel

William & Mary Environmental Law and Policy Review

No abstract provided.


See You In Court: Around The World In Eight Climate Change Lawsuits, Myanna Dellinger Feb 2018

See You In Court: Around The World In Eight Climate Change Lawsuits, Myanna Dellinger

William & Mary Environmental Law and Policy Review

No abstract provided.


Bike Lanes, Not Cars: Mobility And The Legal Fight For Future Los Angeles, Ernesto Hernandez-Lopez Feb 2018

Bike Lanes, Not Cars: Mobility And The Legal Fight For Future Los Angeles, Ernesto Hernandez-Lopez

William & Mary Environmental Law and Policy Review

In 2015, the City of Los Angeles adopted the controversial Mobility Plan 2035. The Plan restructures city transportation planning by emphasizing alternatives to cars for the next twenty years. Predictably, bike lanes became its most polemic aspect. The Plan envisions dramatic increases in bike lanes throughout car-obsessed Los Angeles. This bike lane increase was challenged in court, with objectors claiming that eliminating car lanes would increase congestion and compromise air quality. These arguments are ironic, since environmental justifications typically motivate bike projects.

The Mobility Plan illustrates how law supports and challenges bike lane projects. This Article argues that although this ...


“Either Secrecy, Or Legal Monopoly”: Why We Should Choose Fracking Patents, Sarah Spencer Feb 2018

“Either Secrecy, Or Legal Monopoly”: Why We Should Choose Fracking Patents, Sarah Spencer

William & Mary Environmental Law and Policy Review

No abstract provided.


Dual Sovereignty Is Out, Time For Concurrent Jurisdiction To Shine, Scott Jacobson Feb 2018

Dual Sovereignty Is Out, Time For Concurrent Jurisdiction To Shine, Scott Jacobson

William & Mary Environmental Law and Policy Review

No abstract provided.


Microscopic Allies: Examining And Tackling Legal And Regulatory Barriers To The Development Of Phage Therapy, Jacob Zent Feb 2018

Microscopic Allies: Examining And Tackling Legal And Regulatory Barriers To The Development Of Phage Therapy, Jacob Zent

William & Mary Environmental Law and Policy Review

No abstract provided.


Pregnancy As A Normal Condition Of Employment: Comparative And Role-Based Accounts Of Discrimination, Reva B. Siegel Feb 2018

Pregnancy As A Normal Condition Of Employment: Comparative And Role-Based Accounts Of Discrimination, Reva B. Siegel

William & Mary Law Review

As the Pregnancy Discrimination Act of 1978 (PDA) turns forty, it is time to consider how we define pregnancy discrimination.

In recent years, courts have come to define pregnancy discrimination almost exclusively through comparison. Yet our understanding of discrimination, inside and outside the pregnancy context, depends on judgments about social roles as well as comparison. Both Congress and the Court appealed to social roles in defining the wrongs of pregnancy discrimination. In enacting the PDA, Congress repudiated employment practices premised on the view that motherhood is the end of women’s labor force participation, and affirmed a world in which ...


Untrustworthy: Erisa’S Eroded Fiduciary Law, Peter J. Wiedenbeck Feb 2018

Untrustworthy: Erisa’S Eroded Fiduciary Law, Peter J. Wiedenbeck

William & Mary Law Review

The trust law analogy has come to dominate judicial thinking about employee benefit plans. Yet despite its rise to rhetorical prominence, ERISA fiduciary law has been dramatically transformed by a series of uncoordinated, low-visibility judicial decisions on multiple fronts. These apparently unconnected case law developments reveal a startling pattern of mutually reinforcing restrictions on ERISA’s protection of pension and welfare benefits. This study chronicles ERISA’s trust law turn to expose how untrustworthy workers’ benefit safeguards have become. Both the scope and the intensity of fiduciary oversight have been radically pruned back in the courts. Notwithstanding the congressional declaration ...


Gender Disparity In Law Review Citation Rates, Christopher A. Cotropia, Lee Petherbridge Feb 2018

Gender Disparity In Law Review Citation Rates, Christopher A. Cotropia, Lee Petherbridge

William & Mary Law Review

Gender disparity in scholarly influence—measured in terms of differential citation to academic work—has been widely documented. The weight of the evidence is that, in many fields of academic inquiry, papers authored by women receive fewer citations than papers authored by men. To investigate whether a similar gender disparity in scholarly influence exists in legal studies, we analyze the impact of gender on citation to articles published in top 100 law reviews between 1990 and 2010. We find evidence of gender disparity in citation rates, but in surprising contrast to observations made in other disciplines, we observe that articles ...


Why A President Cannot Authorize The Military To Violate (Most Of) The Law Of War, John C. Dehn Feb 2018

Why A President Cannot Authorize The Military To Violate (Most Of) The Law Of War, John C. Dehn

William & Mary Law Review

Waterboarding and “much worse,” torture, and “tak[ing] out” the family members of terrorists: President Trump endorsed these measures while campaigning for office. After his inauguration, Trump confirmed his view of the effectiveness of torture and has not clearly rejected other measures forbidden by international law. This Article therefore examines whether a President has the power to order or authorize the military to violate international humanitarian law, known as the “law of war.” Rather than assess whether the law of war generally constrains a President as Commander-in-Chief, however, its focus is the extent to which Congress requires the U.S ...


Goldilocks And The Rule 803 Hearsay Exceptions, Liesa L. Richter Feb 2018

Goldilocks And The Rule 803 Hearsay Exceptions, Liesa L. Richter

William & Mary Law Review

Criticism of the hearsay exceptions embodied in the Federal Rules of Evidence has reached a fever pitch in recent years. With scholars calling for the abrogation of the entire hearsay regime or of individual exceptions within it and the Advisory Committee on Evidence Rules exploring hearsay amendments, the time for genuine hearsay soul-searching may be at hand. This Article suggests that aggressive proposals to scuttle existing doctrine entirely in favor of alternative approaches to hearsay are overly broad, rejecting the benefits of significant portions of existing doctrine that are functioning well and threatening costly consequences that could make matters worse ...


Motion To Dismiss For Failure To Succeed On The Merits: The Eeoc And Rule 12(B)(6), Perry F. Austin Feb 2018

Motion To Dismiss For Failure To Succeed On The Merits: The Eeoc And Rule 12(B)(6), Perry F. Austin

William & Mary Law Review

No abstract provided.


Worth The Click: Why Greater Ftc Enforcement Is Needed To Curtail Deceptive Practices In Influencer Marketing, Laura E. Bladow Feb 2018

Worth The Click: Why Greater Ftc Enforcement Is Needed To Curtail Deceptive Practices In Influencer Marketing, Laura E. Bladow

William & Mary Law Review

No abstract provided.


The Road To The Future: A Regulatory Regime For The Rise Of The Robot Cars, Daniel Spencer Feb 2018

The Road To The Future: A Regulatory Regime For The Rise Of The Robot Cars, Daniel Spencer

William & Mary Environmental Law and Policy Review

No abstract provided.


Contract, Promise, And The Right Of Redress, Andrew S. Gold Feb 2018

Contract, Promise, And The Right Of Redress, Andrew S. Gold

William & Mary Business Law Review

This Essay reviews Nathan Oman’s recent book, The Dignity of Commerce. The book is compelling, and it makes an important and original contribution to contract theory—a contribution that insightfully shows how markets matter. Yet, in the course of developing a market-centered justification for contract law, The Dignity of Commerce also downplays the significance of consent and promissory morality. In both cases, the book’s argument is problematic, but this Essay will address questions of promissory morality. Oman contends that promise-based accounts struggle with contract law’s bilateralism and with its private standing doctrine. Yet, promissory morality is a ...


A Pragmatist’S View Of Promissory Law With A Focus On Consent And Reliance, Robert A. Hillman Feb 2018

A Pragmatist’S View Of Promissory Law With A Focus On Consent And Reliance, Robert A. Hillman

William & Mary Business Law Review

This Article discusses Professor Nate Oman’s excellent new book, The Dignity of Commerce, which makes an impressive case for how markets can produce “desirable” outcomes for society. In addition to a comprehensive account of what he calls “virtues” of markets, such as their tendency to produce cooperation, trust, and wealth, the book is full of useful and persuasive supporting information and discussions.

Oman is not only a fan of markets, but he asserts that markets are the “center” of contract theory, and provide its normative foundation. Elaborating, Oman concludes that “contract law exists primarily to support markets” and that ...