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College of William & Mary Law School

Journal

2015

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Articles 1 - 30 of 132

Full-Text Articles in Law

The Merits Of Third-Party Standing, Brian Charles Lea Dec 2015

The Merits Of Third-Party Standing, Brian Charles Lea

William & Mary Bill of Rights Journal

When can a litigant assert someone else’s rights in federal court? The courts currently purport to adhere to a “prudential” justiciability rule barring such “thirdparty standing.” But the Supreme Court has devised exceptions—jus tertii standing and First Amendment overbreadth—under which courts can ignore that rule. The Court has never explained the source of that remarkable judicial power to choose what rights litigants can assert. The doctrine of third-party standing is, in short, an undertheorized muddle. Thankfully, the Court suggested in its 2014 decision in Lexmark International, Inc. v. Static Control Components, Inc., that it might soon try ...


(Same) Sex, Lies, And Democracy: Tradition, Religion, And Substantive Due Process (With An Emphasis On Obergefell V. Hodges), Stephen M. Feldman Dec 2015

(Same) Sex, Lies, And Democracy: Tradition, Religion, And Substantive Due Process (With An Emphasis On Obergefell V. Hodges), Stephen M. Feldman

William & Mary Bill of Rights Journal

Substantive due process issues implicitly concern voice. Whose voice will be heard? Although such issues often remain submerged, the Justices occasionally translate them into disputes over democratic participation and power. The Supreme Court’s most important substantive due process decision in years, Obergefell v. Hodges, entailed such a battle over democracy. The multiple dissenting opinions insisted that the decision demeaned the opponents of same-sex marriage, many of whom were inspired by traditional values and religious convictions. The majority explicitly disagreed, reasoning that the case resolved the rights of same-sex couples to marry and did not diminish the opponents’ voices. The ...


The (Not So Dire) Future Of The Necessary And Proper Power After National Federation Of Independent Business V. Sebelius, Celestine Richards Mcconville Dec 2015

The (Not So Dire) Future Of The Necessary And Proper Power After National Federation Of Independent Business V. Sebelius, Celestine Richards Mcconville

William & Mary Bill of Rights Journal

No abstract provided.


The Establishment Clause, State Action, And Town Of Greece, Nathan S. Chapman Dec 2015

The Establishment Clause, State Action, And Town Of Greece, Nathan S. Chapman

William & Mary Bill of Rights Journal

The Establishment Clause forbids the government from engaging in the same religious exercise that the law protects when performed by a private party. Thus, an establishment case often turns on whether religious activity is “state action.” Too often, however, courts ignore the state action analysis or merge it with the substantive Establishment Clause analysis. This muddles both doctrines and threatens individual religious liberty.

This Article argues that the state action doctrine should account for the government’s distribution of private rights. Accordingly, the Constitution applies to the government’s distribution of rights, but not to a private party’s use ...


Extralegal Supreme Court Policy-Making, Joëlle Anne Moreno Dec 2015

Extralegal Supreme Court Policy-Making, Joëlle Anne Moreno

William & Mary Bill of Rights Journal

The Colbert Report aired its final episode on December 18, 2014.1 Nine years earlier, on the first episode, Stephen Colbert coined the word “truthiness.” Truthiness satirized contemporary disinterest in empirical information in a country increasingly “divided between those who think with their head and those who know with their heart.” Truthiness was not just the Merriam-Webster word of the year. Over the past decade, it has been the unspoken mantra of reporters who give equal time to climate science denialists, faith healers, and vaccine refusers. When Justices of the Supreme Court decide questions of scientific or empirical fact—such ...


Orange Is The New Equal Protection Violation: How Evidence-Based Sentencing Harms Male Offenders, Shaina D. Massie Dec 2015

Orange Is The New Equal Protection Violation: How Evidence-Based Sentencing Harms Male Offenders, Shaina D. Massie

William & Mary Bill of Rights Journal

No abstract provided.


The Eighth Amendment And Tax Evasion: Whether Fatca Non-Compliance Fines And Fbar Penalties Are Excessive, Tyler R. Murray Dec 2015

The Eighth Amendment And Tax Evasion: Whether Fatca Non-Compliance Fines And Fbar Penalties Are Excessive, Tyler R. Murray

William & Mary Bill of Rights Journal

No abstract provided.


A Primer: Air And Water Environmental Quality Standards In The United States, Jason J. Czarnezki, Siu Tip Lam, Nadia B. Ahmad Nov 2015

A Primer: Air And Water Environmental Quality Standards In The United States, Jason J. Czarnezki, Siu Tip Lam, Nadia B. Ahmad

William & Mary Environmental Law and Policy Review

No abstract provided.


What We Have Here Is A Failure To Compensate: The Case For A Federal Damages Remedy In Koontz "Failed Exactions", Christopher M. Kieser Nov 2015

What We Have Here Is A Failure To Compensate: The Case For A Federal Damages Remedy In Koontz "Failed Exactions", Christopher M. Kieser

William & Mary Environmental Law and Policy Review

In Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), the Supreme Court held that an agency could not, consistent with the Takings Clause, condition a permit on a land exaction unless the exaction bears an “essential nexus” and “rough proportionality” to the harms the government seeks to mitigate. Then, in Koontz v. St. Johns Water Management District, 133 S. Ct. 2586 (2013), the Court extended Nollan and Dolan to exactions that were never completed because the property owner refused to acquiesce to the demand. Nevertheless, the Court ...


Effects Of The Craft Beer Boom In Virginia: How Breweries, Regulators, And The Public Can Collaborate To Mitigate Environmental Impacts, Hannah Fish Nov 2015

Effects Of The Craft Beer Boom In Virginia: How Breweries, Regulators, And The Public Can Collaborate To Mitigate Environmental Impacts, Hannah Fish

William & Mary Environmental Law and Policy Review

No abstract provided.


Environmental Hedonism Or, Securing The Environment Through The Common Law, George P. Smith Ii, David M. Steenburg Nov 2015

Environmental Hedonism Or, Securing The Environment Through The Common Law, George P. Smith Ii, David M. Steenburg

William & Mary Environmental Law and Policy Review

No abstract provided.


Thinking Under The Box--Public Choice And Constitutional Law Perspectives On City-Level Environmental Policy, Harri Kalimo, Reid Lifset Nov 2015

Thinking Under The Box--Public Choice And Constitutional Law Perspectives On City-Level Environmental Policy, Harri Kalimo, Reid Lifset

William & Mary Environmental Law and Policy Review

No abstract provided.


Triumph Of The Space Commons: Addressing The Impending Space Debris Crisis Without An International Treaty, Joseph Kurt Nov 2015

Triumph Of The Space Commons: Addressing The Impending Space Debris Crisis Without An International Treaty, Joseph Kurt

William & Mary Environmental Law and Policy Review

No abstract provided.


Ring-Fencing The Power Envelope Of History's Second Most Important Invention Of All Time, Steven Ferrey Nov 2015

Ring-Fencing The Power Envelope Of History's Second Most Important Invention Of All Time, Steven Ferrey

William & Mary Environmental Law and Policy Review

No abstract provided.


Gas, Roads, And Glory: North Dakota And Mha Nation's Struggle Over Flaring Regulation, Erica Beacom Nov 2015

Gas, Roads, And Glory: North Dakota And Mha Nation's Struggle Over Flaring Regulation, Erica Beacom

William & Mary Environmental Law and Policy Review

No abstract provided.


Allyship To The Intersex Community On Cosmetic, Non-Consensual Genital "Normalizing" Surgery, Robert Hupf Nov 2015

Allyship To The Intersex Community On Cosmetic, Non-Consensual Genital "Normalizing" Surgery, Robert Hupf

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

No abstract provided.


Naiming The States Where Loving Will Be Recognized: On Tea Leaves, Horizontal Federalism, And Same-Sex Marriage, Mark Strasser Nov 2015

Naiming The States Where Loving Will Be Recognized: On Tea Leaves, Horizontal Federalism, And Same-Sex Marriage, Mark Strasser

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

No abstract provided.


Married On Sunday, Fired On Monday: Approaches To Federal Lgbt Civil Rights Protections, Lisa Bornstein, Megan Bench Nov 2015

Married On Sunday, Fired On Monday: Approaches To Federal Lgbt Civil Rights Protections, Lisa Bornstein, Megan Bench

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

No abstract provided.


Where The American Dream Becomes A Nightmare: Lgbt Detainees In Immigration Detention Facilities, Lauren Zitsch Nov 2015

Where The American Dream Becomes A Nightmare: Lgbt Detainees In Immigration Detention Facilities, Lauren Zitsch

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

No abstract provided.


Toward A Socially Responsible Application Of The Criminal Law To The Problem Of Street Harassment, Maeve Olney Nov 2015

Toward A Socially Responsible Application Of The Criminal Law To The Problem Of Street Harassment, Maeve Olney

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

No abstract provided.


The Costs Of Easy Victory, Michael E. Waterstone Nov 2015

The Costs Of Easy Victory, Michael E. Waterstone

William & Mary Law Review

Studies of law and social change often focus on areas of intense conflict, including abortion, gun rights, and various issues around race, gender, and sexual orientation. Each of these has entered the culture wars, inspiring fierce resistance and organized countermovements. A reasonable assumption might be that social change in less controversial areas might be easier. In this Article, I suggest that it is not that simple. Using the disability rights movement, I demonstrate how flying under the radar leads to unappreciated obstacles. The disability rights movement had a relatively easy path to the passage of the Americans with Disabilities Act ...


Ncaa And The Rule Of Reason: Analyzing Improved Education Quality As A Procompetitive Justification, Cameron D. Ginder Nov 2015

Ncaa And The Rule Of Reason: Analyzing Improved Education Quality As A Procompetitive Justification, Cameron D. Ginder

William & Mary Law Review

No abstract provided.


Personal Jurisdiction Based On The Local Effects Of Intentional Misconduct, Allan Erbsen Nov 2015

Personal Jurisdiction Based On The Local Effects Of Intentional Misconduct, Allan Erbsen

William & Mary Law Review

Intentional misconduct frequently has extraterritorial consequences. Terrorist attacks, toxic pollution, civil rights violations, and other intentional torts can cause harm within a state despite originating outside the state. Those harms raise a vexing constitutional question: when do the local effects of intentional wrongdoing authorize personal jurisdiction over a defendant whose conduct occurred outside the forum? The answer has several significant implications. Granting or denying jurisdiction can support or undermine regulatory interests by allocating power between states, imposes burdens on the parties that can impede access to justice, and alters risk assessments that shape both socially desirable and socially destructive behavior.


Forfeiting Trust, Deborah S. Gordon Nov 2015

Forfeiting Trust, Deborah S. Gordon

William & Mary Law Review

Over the past two years, a significant number of appellate courts in jurisdictions throughout the country have faced trust provisions that purport to disinherit any beneficiaries who challenge a trustee’s decision making. Such provisions to “secure compliance ... with dispositions of property”—known as “forfeiture,” “no-contest,” “anticontest,” or “penalty” clauses—have appeared in wills for well more than a century. But the trust clauses differ from their testamentary counterparts and thus deserve serious scrutiny in their own right, especially because the abundance of recent cases has led to increasingly inconsistent and haphazard approaches. This Article exposes the problems that trust ...


Fiduciary Governance, Paul B. Miller, Andrew S. Gold Nov 2015

Fiduciary Governance, Paul B. Miller, Andrew S. Gold

William & Mary Law Review

The fiduciary relationship is one of the most fundamental legal relationships, and its importance for both public and private law is increasingly recognized. Fiduciary mandates typically involve one person—the fiduciary—administering the affairs or property of other persons—an individual beneficiary or group of beneficiaries. Yet, as we will demonstrate, this is not the only way fiduciary relationships are structured. Most accounts of fiduciary law oversimplify the law because they exclude a categorically different form of fiduciary relationship. A significant set of fiduciary relationships feature governance mandates in which the fiduciary is charged with pursuing abstract purposes rather than ...


Drugs For The Indigent: A Proposal To Revise The 340b Drug Pricing Program, Connor J. Baer Nov 2015

Drugs For The Indigent: A Proposal To Revise The 340b Drug Pricing Program, Connor J. Baer

William & Mary Law Review

No abstract provided.


Defending Daubert: It's Time To Amend Federal Rule Of Evidence 702, David E. Bernstein, Eric G. Lasker Oct 2015

Defending Daubert: It's Time To Amend Federal Rule Of Evidence 702, David E. Bernstein, Eric G. Lasker

William & Mary Law Review

The 2000 amendments to Rule 702 sought to resolve the debate that had emerged in the courts in the 1990s over the proper meaning of Daubert by codifying the rigorous and structured approach to expert admissibility announced in the Daubert trilogy. Fifteen years later, however, the amendments have only partially accomplished this objective. Many courts continue to resist the judiciary’s proper gatekeeping role, either by ignoring Rule 702’s mandate altogether or by aggressively reinterpreting the Rule’s provisions.

Informed by this additional history of recalcitrance, the time has come for the Judicial Conference to return to the drafting ...


Regulating Drones Under The First And Fourth Amendments, Marc Jonathan Blitz, James Grimsley, Stephen E. Henderson, Joseph Thai Oct 2015

Regulating Drones Under The First And Fourth Amendments, Marc Jonathan Blitz, James Grimsley, Stephen E. Henderson, Joseph Thai

William & Mary Law Review

The FAA Modernization and Reform Act of 2012 requires the Federal Aviation Administration to integrate unmanned aerial vehicles (UAVs), or drones, into the national airspace system by September 2015. Yet perhaps because of their chilling accuracy in targeted killings abroad, perhaps because of an increasing consciousness of diminishing privacy more generally, and perhaps simply because of a fear of the unknown, divergent UAV-restrictive legislation has been proposed in Congress and enacted in a number of states. Given UAV utility and cost-effectiveness over a vast range of tasks, however, widespread commercial use ultimately seems certain. Consequently, it is imperative to understand ...


Basing Budget Baselines, David Kamin Oct 2015

Basing Budget Baselines, David Kamin

William & Mary Law Review

Measuring the cost of legislation or even projecting the course of the federal budget requires defining a budget baseline—a starting point capturing the current state of the budget. Budget baselines underlie most measures employed in federal budget debates and enforcement rules. Yet, despite their widespread use, budget baselines engender considerable confusion and abuse.

For instance, when legislators enact temporary tax breaks, the breaks are officially estimated to cost far less than they likely will because of a loophole in federal budget baseline rules. Then, later efforts to extend the tax cuts are counted as increasing deficits when, in fact ...


A New Fulcrum Point For City Survival, Samir D. Parikh Oct 2015

A New Fulcrum Point For City Survival, Samir D. Parikh

William & Mary Law Review

Municipalities have historically enjoyed immense stability. This era of tranquility is over, and fiscal deterioration is accelerating. Policymakers and scholars have struggled to formulate debt restructuring options; almost all have embraced federal bankruptcy law. But this resource-draining process is not the fulcrum point for any meaningful solution to municipal demise. Indeed, for the vast majority of distressed municipalities, the lever of municipal recovery will not turn on the solutions that have been offered to date. This Article radically shifts the municipal recovery debate by arguing that state law is the centralized point at which officials can exert the necessary amount ...