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College of William & Mary Law School

Journal

2014

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Articles 1 - 30 of 141

Full-Text Articles in Law

Mail Order Feminism, Marcia Zug Dec 2014

Mail Order Feminism, Marcia Zug

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

This Essay will argue that America’s current marriage crisis is a problem that could be solved by encouraging mail order marriages. Specifically, Part I of this Article will show how the current marriage crisis is the result of an increasing educational gap between American men and women that is leaving less educated men with few marriage prospects. It will further argue that the loss of marriage prospects is concerning both because marriage is often the social institution that supports men as their job prospects falter and because it has the potential to create an angry and dangerous underclass of ...


Sentencing Roulette: How Virginia’S Criminal Sentencing System Is Imposing An Unconstitutional Trial Penalty That Suppresses The Rights Of Criminal Defendants To A Jury Trial, Caleb R. Stone Dec 2014

Sentencing Roulette: How Virginia’S Criminal Sentencing System Is Imposing An Unconstitutional Trial Penalty That Suppresses The Rights Of Criminal Defendants To A Jury Trial, Caleb R. Stone

William & Mary Bill of Rights Journal

No abstract provided.


The Daryl Atkins Story, Mark E. Olive Dec 2014

The Daryl Atkins Story, Mark E. Olive

William & Mary Bill of Rights Journal

No abstract provided.


Hall V. Florida: The Supreme Court’S Guidance In Implementing Atkins, James W. Ellis Dec 2014

Hall V. Florida: The Supreme Court’S Guidance In Implementing Atkins, James W. Ellis

William & Mary Bill of Rights Journal

No abstract provided.


A Tale Of Two (And Possibly Three) Atkins: Intellectual Disability And Capital Punishment Twelve Years After The Supreme Court’S Creation Of A Categorical Bar, John H. Blume, Sheri Lynn Johnson, Paul Marcus, Emily Paavola Dec 2014

A Tale Of Two (And Possibly Three) Atkins: Intellectual Disability And Capital Punishment Twelve Years After The Supreme Court’S Creation Of A Categorical Bar, John H. Blume, Sheri Lynn Johnson, Paul Marcus, Emily Paavola

William & Mary Bill of Rights Journal

No abstract provided.


Scientizing Culpability: The Implications Of Hall V. Florida And The Possibility Of A “Scientific Stare Decisis”, Christopher Slobogin Dec 2014

Scientizing Culpability: The Implications Of Hall V. Florida And The Possibility Of A “Scientific Stare Decisis”, Christopher Slobogin

William & Mary Bill of Rights Journal

The Supreme Court’s decision in Hall v. Florida held that “clinical definitions” control the meaning of intellectual disability in the death penalty context. In other words, Hall “scientized” the definition of a legal concept. This Article discusses the implications of this unprecedented move. It also introduces the idea of scientific stare decisis—a requirement that groups that are scientifically alike be treated similarly for culpability purposes—as a means of implementing the scientization process.


Does Atkins Make A Difference In Non-Capital Cases? Should It?, Paul Marcus Dec 2014

Does Atkins Make A Difference In Non-Capital Cases? Should It?, Paul Marcus

William & Mary Bill of Rights Journal

No abstract provided.


Challenges Of Conveying Intellectual Disabilities To Judge And Jury, Caroline Everington Dec 2014

Challenges Of Conveying Intellectual Disabilities To Judge And Jury, Caroline Everington

William & Mary Bill of Rights Journal

No abstract provided.


The True Legacy Of Atkins And Roper: The Unreliability Principle, Mentally Ill Defendants, And The Death Penalty’S Unraveling, Scott E. Sundby Dec 2014

The True Legacy Of Atkins And Roper: The Unreliability Principle, Mentally Ill Defendants, And The Death Penalty’S Unraveling, Scott E. Sundby

William & Mary Bill of Rights Journal

In striking down the death penalty for intellectually disabled and juvenile defendants, Atkins v. Virginia and Roper v. Simmons have been understandably heralded as important holdings under the Court’s Eighth Amendment jurisprudence that has found the death penalty “disproportional” for certain types of defendants and crimes. This Article argues, however, that the cases have a far more revolutionary reach than their conventional understanding. In both cases the Court went one step beyond its usual two-step analysis of assessing whether imposing the death penalty violated “evolving standards of decency.” This extra step looked at why even though intellectual disability and ...


Everyone Forgets About The Third Amendment: Exploring The Implications On Third Amendment Case Law Of Extending Its Prohibitions To Include Actions By State Police Officers, Samantha A. Lovin Dec 2014

Everyone Forgets About The Third Amendment: Exploring The Implications On Third Amendment Case Law Of Extending Its Prohibitions To Include Actions By State Police Officers, Samantha A. Lovin

William & Mary Bill of Rights Journal

No abstract provided.


Women In The Crowd Of Corporate Directors: Following, Walking Alone, And Meaningfully Contributing, Joan Macleod Heminway Dec 2014

Women In The Crowd Of Corporate Directors: Following, Walking Alone, And Meaningfully Contributing, Joan Macleod Heminway

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

No abstract provided.


A Travesty Of Justice: Revisiting Harris V. Mcrae, Jill E. Adams, Jessica Arons Dec 2014

A Travesty Of Justice: Revisiting Harris V. Mcrae, Jill E. Adams, Jessica Arons

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

No abstract provided.


Feminist Legal Theory As A Way To Explain The Lack Of Progress Of Women’S Rights In Afghanistan: The Need For A State Strength Approach, Isaac Kfir Dec 2014

Feminist Legal Theory As A Way To Explain The Lack Of Progress Of Women’S Rights In Afghanistan: The Need For A State Strength Approach, Isaac Kfir

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

Cultural and religious practices are critical to explaining Afghanistan’s dreadful reputation concerning the preservation, protection, and promotion of women’s rights. Those advocating misogynistic practices assert that the calls for reforms challenge their religion and culture, while also claiming that many women’s issues exist within the private realm. Accordingly, they assert that reforms that aim at addressing disempowerment are not vital to the state and go beyond the established limits of state authority. Building on feminist legal theory, which distinguishes between the public and private spheres, I argue in Afghanistan misogynistic and discriminatory practices stem from contrived cultural ...


Procedurally Criminal: How Peremptory Challenges Create Unfair And Unrepresentative Single-Gender Juries, Chelsea V. King Dec 2014

Procedurally Criminal: How Peremptory Challenges Create Unfair And Unrepresentative Single-Gender Juries, Chelsea V. King

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

No abstract provided.


Suicide In The Name Of Honor: Why And How U.S. Asylum Law Should Be Modified To Allow Greater Acceptance Of Honor-Violence Victims To Prevent “Honor Suicides”, Ayla M. Kremen Dec 2014

Suicide In The Name Of Honor: Why And How U.S. Asylum Law Should Be Modified To Allow Greater Acceptance Of Honor-Violence Victims To Prevent “Honor Suicides”, Ayla M. Kremen

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

No abstract provided.


Managing The Risks Of Shale Gas Development Using Innovative Legal And Regulatory Approaches, Sheila Olmstead, Nathan Richardson Dec 2014

Managing The Risks Of Shale Gas Development Using Innovative Legal And Regulatory Approaches, Sheila Olmstead, Nathan Richardson

William & Mary Environmental Law and Policy Review

Booming production of oil and gas from shale enabled by hydraulic fracturing technology has led to tension between hoped-for economic benefits and feared environmental and other costs, with great associated controversy. Studies of how policy can best react to these challenges and how it can balance risk and reward have focused on prescriptive regulatory responses and, to a somewhat lesser extent, voluntary industry best practices. While there is undoubtedly room for improved regulation, innovative tools are relatively understudied. The liability system predates environmental regulation yet still plays an important—and in some senses predominant—role. Changes to that system, including ...


Changing Lead Into Gold: Examining Agency Attempts To Use The Clean Water Act To Solve Ecosystem Degradation Issues, N. Lindsay Simmons Dec 2014

Changing Lead Into Gold: Examining Agency Attempts To Use The Clean Water Act To Solve Ecosystem Degradation Issues, N. Lindsay Simmons

William & Mary Environmental Law and Policy Review

No abstract provided.


Rethinking Ddt: The Misguided Goals Of The Stockholm Convention On Persistent Organic Pollutants And A Plan To Fight Malaria Worldwide, Eva Zelson Dec 2014

Rethinking Ddt: The Misguided Goals Of The Stockholm Convention On Persistent Organic Pollutants And A Plan To Fight Malaria Worldwide, Eva Zelson

William & Mary Environmental Law and Policy Review

No abstract provided.


Navigating Through The Confusion Left In The Wake Of Rapanos: Why A Rule Clarifying And Broadening Jurisdiction Under The Clean Water Act Is Necessary, Kristen Clark Dec 2014

Navigating Through The Confusion Left In The Wake Of Rapanos: Why A Rule Clarifying And Broadening Jurisdiction Under The Clean Water Act Is Necessary, Kristen Clark

William & Mary Environmental Law and Policy Review

No abstract provided.


Orchestrating Under Uncertainty: The Organization Of Sustainable Development At The United Nations, Philip A. Sandick Dec 2014

Orchestrating Under Uncertainty: The Organization Of Sustainable Development At The United Nations, Philip A. Sandick

William & Mary Environmental Law and Policy Review

No abstract provided.


The Global Cost Of Green: Recent Trade Issues And Litigation Between The United States And China May Dissolve Global Green Cooperation, David P. Vincent Dec 2014

The Global Cost Of Green: Recent Trade Issues And Litigation Between The United States And China May Dissolve Global Green Cooperation, David P. Vincent

William & Mary Environmental Law and Policy Review

This Article begins by looking at how China has moved forward in embracing green technology development, the government’s role in that growth and whether its support is truly harmful on a global scale. It highlights key laws in the United States and the WTO involving trade—specifically subsidies, countervailing duties and anti-dumping regulations. An examination of recent trade cases involving the United States and China is followed by an analysis of America’s recent trade-oriented actions and legislation. Lastly, this Article will consider the legal implications of recent trade developments between these countries as well as policy implications, including ...


Compulsory Water Fluoridation: Justifiable Public Health Benefit Or Human Experimental Research Without Informed Consent?, Rita Barnett-Rose Dec 2014

Compulsory Water Fluoridation: Justifiable Public Health Benefit Or Human Experimental Research Without Informed Consent?, Rita Barnett-Rose

William & Mary Environmental Law and Policy Review

No abstract provided.


Why Environmental Laws Fail, Jan G. Laitos, Lauren Joseph Wolongevicz Dec 2014

Why Environmental Laws Fail, Jan G. Laitos, Lauren Joseph Wolongevicz

William & Mary Environmental Law and Policy Review

Although governments have deployed an array of environmental protection laws, our planet continues to experience unprecedented environmental “crises,” including climate change, resource depletion, species extinction, ecosystem damage, and toxic air-water-land pollution. Despite universal acknowledgment and recognition of these serious environmental issues, and despite a growing list of laws designed to address these issues, the reality is that these adverse Earth-based environmental changes continue, and may even be worsening. Environmental protection laws have often failed because they usually include certain problematic characteristics: they are anthropocentric, in that their goal is to protect and benefit humans, not the environment in which humans ...


There May Not Always Be More Fish In The Sea: Why Noaa’S Restrictions Do Not Violate The Magnuson-Stevens Act, Lindsey Nicolai Dec 2014

There May Not Always Be More Fish In The Sea: Why Noaa’S Restrictions Do Not Violate The Magnuson-Stevens Act, Lindsey Nicolai

William & Mary Environmental Law and Policy Review

No abstract provided.


Reconsidering The Institutional Design Of Federal Securities Regulation, Zachary J. Gubler Nov 2014

Reconsidering The Institutional Design Of Federal Securities Regulation, Zachary J. Gubler

William & Mary Law Review

The institutional design literature is interested in the optimality of particular legal institutions, for example, judicial review of agency actions, corporate federalism, and environmental policy. This Article brings such an analysis to bear on federal securities regulation and argues that we could improve upon the current institutional structure. In particular, the Article proposes that the Securities and Exchange Commission (SEC) be given even more decision-making authority than it currently has under the statutory scheme, effectively authorizing the agency to create disclosure rules for any firm that operates in interstate commerce. At the same time, the Article proposes that we place ...


Determining Extraterritoriality, Franklin A. Gevurtz Nov 2014

Determining Extraterritoriality, Franklin A. Gevurtz

William & Mary Law Review

This Article addresses an underexplored but critical aspect of the presumption against extraterritoriality. The presumption against extraterritoriality—which the United States Supreme Court has increasingly invoked in recent years—calls for courts to presume that Congress does not intend U.S. statutes to govern events outside the United States. The most difficult issue presented by the presumption arises when relevant events occur both inside and outside the United States, as in the classic example, if a shooter on one side of the border kills a victim on the other, or if, as in the leading case, false statements originating inside ...


A Process Failure Theory Of Statutory Interpretation, Mark Seidenfeld Nov 2014

A Process Failure Theory Of Statutory Interpretation, Mark Seidenfeld

William & Mary Law Review

Despite all that has been written about the choice between purposivist, intentionalist, and textualist approaches to statutory interpretation, to date the literature has not provided a justification for the common judicial practice of relying on intent-based inquiries in some cases and disavowing those approaches for textualism in others. This Article fills that void and, in doing so, lays out a new “legislative process failure” theory of statutory interpretation that has the potential to move the debate beyond a simple choice between textual and intent-based interpretation. This Article argues that Congress and the courts comprise different linguistic communities when they interpret ...


Death, Desuetude, And Original Meaning, John F. Stinneford Nov 2014

Death, Desuetude, And Original Meaning, John F. Stinneford

William & Mary Law Review

One of the most common objections to originalism is that it cannot cope with cultural change. One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses. This Article shows that this objection to originalism is inapt, at least with respect to the Cruel and Unusual punishments Clause. As I have shown in prior articles, the original meaning of “cruel and unusual” is “cruel and contrary to ...


Of Pornography Pirates And Privateers: Applying Fdcpa Principles To Copyright Trolling Litigation, Henry D. Alderfer Nov 2014

Of Pornography Pirates And Privateers: Applying Fdcpa Principles To Copyright Trolling Litigation, Henry D. Alderfer

William & Mary Law Review

No abstract provided.


Capping E-Discovery Costs: A Hybrid Solution To E-Discovery Abuse, Karel Mazanec Nov 2014

Capping E-Discovery Costs: A Hybrid Solution To E-Discovery Abuse, Karel Mazanec

William & Mary Law Review

No abstract provided.