Law Commons^™

The Future Of College Sports After Alston: Reforming The Ncaa Via Conditional Antitrust Immunity, Nathaniel Grow

William & Mary Law Review

In June 2021, a unanimous U.S. Supreme Court issued its eagerly anticipated decision in National Collegiate Athletic Association v. Alston, ruling for the first time that NCAA rules governing student-athlete eligibility are subject to full scrutiny under federal antitrust law. Although the immediate impact of the Alston decision was rather modest—merely requiring the NCAA to allow its schools to compete by offering prospective players education-related benefits such as laptop computers and stipends for future graduate-level study—the Court hinted that it was prepared to extend the logic of this ruling much further, calling into question the legality of the NCAA’s …

Proving Copying, Shyamkrishna Balganesh, Peter S. Menell

William & Mary Law Review

Proof that a defendant actually copied from a copyrighted work is a critical part of a claim for copyright infringement. Indeed, absent such copying, there is no infringement. The most common method of proving copying involves the use of circumstantial evidence, consisting of proof that a defendant had “access” to the protected work, and a showing of “similarities” between the copy and the protected work. In inferring copying from the combination of such evidence, courts have for many decades developed a framework known as the “inverse ratio rule,” which allows them to modulate the level of proof needed on access …

Another Bite At The Apple Or The Same Bite? Characterizing Habeas Petitions On Appeal As Pending Instead Of Fully Adjudicated, Gregory Winder

William & Mary Law Review

[...] One of the Act's [Antiterrorism and Effective Death Penalty Act] most significant aspects is its restriction on the filing of successive habeas corpus petitions. Responding to this restriction, prisoners have attempted to circumvent the AEDPA through a number of different procedural routes with varying degrees of success.

This Note examines the circuit split that has emerged for one of those procedural attempts—motions to amend habeas petitions following adjudication on the merits and while on appeal in a circuit court. This Note argues that allowing amendment of habeas petitions on appeal is both consistent with the history of habeas corpus …

Incitement And Social Media-Algorithmic Speech: Redefining Brandenburg For A Different Kind Of Speech, Anna Rhoads

William & Mary Law Review

Assuming that these scholars are correct and that social media algorithms’ decisions qualify as speech to which the First Amendment applies (social media-algorithmic speech), this Note proposes a legal solution to the increasing problem of violence stemming from social media. This Note asserts that the incitement standard for social media-algorithmic speech should be less stringent because the Brandenburg standard does not apply well to new media, social media-algorithmic speech is much more likely than other speech to actually produce lawless action, and the traditional First Amendment justifications do not apply to social media algorithms’ speech. Therefore, the Supreme Court should …

A World Without Roe: The Constitutional Future Of Unwanted Pregnancy, Julie C. Suk

William & Mary Law Review

With the demise of Roe v. Wade, the survival of abortion access in America will depend on new legal paths. In the same moment that Dobbs v. Jackson Women’s Health Organization has constrained access to abortion in the United States, other constitutional democracies have moved in the opposite direction, expanding access to safe, legal, and free abortions. They have done so without reasoning from Roe’s vision of the private zone of unwanted pregnancy. The development of abortion law outside the United States provides critical insights that can inform future efforts to vindicate the constitutional rights of women facing …

Equal Dignity, Colorblindness, And The Future Of Affirmative Action Beyond Grutter V. Bollinger, Thomas P. Crocker

William & Mary Law Review

In Grutter v. Bollinger the Supreme Court held that diversity was a compelling interest for equal protection purposes that justifies limited consideration of race through affirmative action programs. But there was a catch. The Court predicted that diversity would cease to be a compelling interest within twenty-five years. This Article examines the surprising doctrinal and conceptual implications that would follow if, having both the motive and means, the Court were to overturn Grutter before its predicted 2028 sunset. Exploring internal tensions within existing doctrine, this Article argues that even if the Court were to overturn Grutter, a form of …

Religious Liberty Interest Convergence, Asma T. Uddin

William & Mary Law Review

Americans are deeply polarized on a plethora of issues. One of the most prominent areas of polarization is religious liberty, which in recent years has increasingly pitted conservative, white Christians against a range of marginalized minorities, particularly Muslims. The divide threatens Muslims’ rights and the vitality of religious liberty more broadly. This Article assesses the extent to which self-interest— especially the self-interest of the conservative Justices of the Supreme Court—can help depolarize religious liberty.

Professor Derrick Bell’s theory of “interest convergence” helps connect different self-interests that, in turn, enable issue-specific coalitions strong enough to effect serious cultural and legal change. …

Preempting The States And Protecting The Charities: A Case For Nonprofit-Exempting Federal Action In Consumer Data Privacy, Sarah Fisher

William & Mary Law Review

This Note argues that Congress should use its Commerce Clause power to pass a consumer data privacy measure that (1) preempts state law and (2) explicitly exempts 501(c)(3) organizations from compliance. Such preemptive action with a narrow 501(c)(3) carve-out would avoid the potential harm of exempting too broad a group of nonprofit entities while ensuring charitable organizations’ continued existence, would be more protective of both the individual privacy right and 501(c)(3) existence than merely adjusting the revenue dollar threshold at which entities must comply, and would properly balance the individual right to control personal data with the societal good served …

Charting A Course To Conserve 30% Of Freshwaters By 2030, Sandra B. Zellmer

William & Mary Law Review

One of President Biden’s earliest executive orders established an ambitious national goal to conserve at least 30 percent of U.S. lands, waters, and oceans by 2030. The Biden administration is not alone; over 100 countries support this goal as a means of combating climate change and slowing the pace of species extinction, both of which are accelerating at a rate that is unprecedented in history.

Despite its vow to pursue a wide-sweeping, all-of-government approach, Biden’s 30 by 30 initiative overlooks a critical component of the conservation goal—it pays virtually no attention to freshwater. Freshwater ecosystems are among the most endangered …

Ford V. Where Are We?: The Revival Of The Sliding Scale To Govern The Supreme Court's New "Relating To" Personal Jurisdiction, Zois Manaris

William & Mary Law Review

This Note proposes a test to govern “relating to” specific jurisdiction, a variation on a theme to those familiar with the doctrine: a “sliding scale” approach to contacts and relatedness, accompanied by a separate assessment of reasonableness factors the Supreme Court has outlined in previous cases to serve as a check on the sliding scale. Part I of this Note explains the “sliding scale” approach, its unpleasant first interaction with the Court, and its revival by the Ford majority. Part II defines this Note’s proposed test and demonstrates its consistency with Supreme Court precedent. Finally, Part III applies this Note’s …

Atomistic Antitrust, Robin C. Feldman, Mark A. Lemley

William & Mary Law Review

Antitrust is atomistic: deliberately focused on trees, not forests. It pays attention to the consequences of individual acts alleged to be anticompetitive.

That focus is misplaced. Companies and markets don't focus on one particular act to the exclusion of all else. Business strategy emphasizes holistic, integrated planning. And market outcomes aren't determined by a single act, but by the result of multiple acts by multiple parties in the overall context of the structure and characteristics of the market.

The atomistic nature of modern antitrust law causes it to miss two important classes of potential competitive harms. First, the focus on …

Stale Real Estate Convenants, Robert C. Ellickson

William & Mary Law Review

Since the 1970s, covenants running with the land have tethered a large majority of the new housing units produced in the United States. These private restraints usually continue for generations, until a majority or supermajority of covenant beneficiaries affirmatively vote to amend or terminate them. Covenants interact with public land use controls, particularly zoning ordinances. Zoning politics tends to freeze land uses in urban America, particularly in existing neighborhoods of single-family homes. This Article investigates to what extent covenants exacerbate the zoning freeze. It provides a history of the use of private covenants and suggests how drafters, judges, and legislators …

Goss V. Lopez As A Vehicle To Examine Due Process Protection Issues With Alternative Schools, Ashton Tuck Scott

William & Mary Law Review

Circuits are split on whether students are entitled to procedural protections before school officials may force them into alternative schools. This Note argues that students facing an involuntary transfer to a disciplinary alternative school are entitled to procedural protections under the Due Process Clause of the Fourteenth Amendment. Part I explains the trend toward the use of disciplinary alternative schools and the social and educational harms that these schools exacerbate. Part II explores the current circuit split around the procedural due process rights of students facing involuntary transfer to an alternative school. Part III argues that courts should expand the …

Cannabis, Consumers, And The Trademark Laundering Trap, Viva R. Moffat, Sam Kamin, Tim Maffett

William & Mary Law Review

At the moment, cannabis companies cannot acquire federal trademark protection for their marijuana products because the ''lawful use" doctrine limits trademark registration to goods lawfully sold in commerce. Given that marijuana remains illegal under federal law, this may not sound like much of a problem, but it has serious consequences for consumers. Without trademark rights, one cannabis company can simply use the brand name of another, more prominent, company on its marijuana products, and consumers will assume that they are getting the products they have come to rely on, with potentially dangerous results. The current approach of the United States …

Patent Prophylaxis: Expanding Access To Prep Through 28 U.S.C. § 1498, Jonathan A. Bell

William & Mary Law Review

Part I of this Note details the discovery of Truvada for PrEP [pre-exposure prophylaxis] and the ongoing patent infringement litigation brought by HHS [United States Department of Health and Human Services], discusses the patents currently held by CDC and Gilead, and examines the shortcomings of infringement litigation as a means to expand access to the drug. Part II analyzes the mechanism of march-in rights under the Bayh-Dole Act and discusses two previously attempted applications for the HIV-management drug ritonavir to demonstrate why march-in rights will always fail to expand access to life-saving medications or reduce costs to consumers. Part III …

Congressional Rules Of Interpretation, Jarrod Shobe

William & Mary Law Review

Many scholars argue that Congress should adopt federal rules of statutory interpretation to guide judicial interpretation. This Article uses a novel dataset to show that Congress has long used enacted rules of interpretation and has increasingly done so in recent decades. However, it has chosen to do so on a statute-by-statute basis in a way that has gone mostly unnoticed by scholars and judges. We developed a dataset by using computer code to search the U.S. Code dating back to 1946 for specific phrases indicating a rule of interpretation, then manually checked and classified each rule. These rules not only …

Private Rights Of Action In Privacy Law, Lauren Henry Scholz

William & Mary Law Review

Many privacy advocates assume that the key to providing individuals with more privacy protection is strengthening the government’s power to directly sanction actors that hurt the privacy interests of citizens. This Article contests the conventional wisdom, arguing that private rights of action are essential for privacy regulation. First, I show how private rights of action make privacy law regimes more effective in general. Private rights of action are the most direct regulatory access point to the private sphere. They leverage private expertise and knowledge, create accountability through discovery, and have expressive value in creating privacy-protective norms. Then to illustrate the …

Abortion, Sterilization, And The Universe Of Reproductive Rights, Melissa Murray

William & Mary Law Review

In recent years, a new narrative associating reproductive rights with the eugenics movement of the 1920s has taken root. As this narrative maintains, in the 1920s, Margaret Sanger, a pioneer of the modern birth control movement, joined forces with the eugenics movement to market family planning measures to marginalized minority communities.

Although the history undergirding this narrative is incomplete and misleading, the narrative itself has flourished as the debate over the continued vitality of reproductive rights has unfolded in the United States. Indeed, in just the last three years, a member of the United States Supreme Court and a number …

Substituted Service And The Hague Service Convention, William S. Dodge

William & Mary Law Review

State law plays a surprisingly large role in transnational litigation, and how it defines the applicability of the Hague Service Convention is an important example. In Volkswagenwerk Aktiengesellschaft v. Schlunk, the U.S. Supreme Court held that the Convention does not apply when, under state law, service of process is made within the United States. In Schlunk, Illinois law permitted substituted service on the U.S. subsidiary of a foreign parent company, so the Convention did not apply. This Article looks at substituted service under state law today and when it permits avoidance of the Hague Convention. The Article focuses …

Endorsing After Death, Andrew Gilden

William & Mary Law Review

An endorsement is an act of giving one’s public support to a person, product, service, or cause; accordingly, it might seem impossible for someone to make an endorsement after they have died. Nevertheless, posthumous endorsements have become commonplace in social media marketing and have been increasingly embraced by trademark and unfair competition laws. Entities representing Marilyn Monroe, for example, have successfully brought trademark claims for the unauthorized use of Monroe’s name, have successfully brought false endorsement claims under section 43(a) of the Lanham Act, and regularly have promoted products through the Instagram-verified “@marilynmonroe” page. Marilyn Monroe survives today as a …

Disclosure Of Private Climate Transition Risks, Michael P. Vandenbergh

William & Mary Law Review

This Article identifies a gap in the securities disclosure regime for climate change and demonstrates how filling the gap can improve financial disclosures and accelerate climate change mitigation. Private climate initiatives have proliferated in the last decade. Often led by advocacy groups, these private initiatives have used naming and shaming campaigns and other means to induce investors, lenders, insurers, retail customers, supply chain customers, and employees to pressure firms to engage in climate change mitigation. Based on an empirical assessment of the annual reports filed with the Securities and Exchange Commission (SEC) by Fortune 100 firms and the largest firms …

No Child Left Behind Bars: Applying The Principles Of Strict Scrutiny When Sentencing Juveniles Tried As Adults, Max Chu

William & Mary Law Review

The Commonwealth of Virginia was the first in the nation to pass legislation that provides judges with the discretion to veer away from the mandatory minimum sentence and to impose trauma-informed and age-appropriate sentences for juvenile offenders convicted of felonies and tried as adults. Although Virginia’s new law, House Bill 744 (HB 744), is a pioneering step in the right direction, this Note argues that the law may now provide judges with too much discretion. In other words, HB 744 alone, without more guidance, does not go far enough to protect the rights of juvenile offenders.

Therefore, this Note proposes …

Fourth Amendment Infringement Is Afoot: Revitalizing Particularized Reasonable Suspicion For Terry Stops Based On Vague Or Discrepant Suspect Descriptions, Caroline E. Lewis

William & Mary Law Review

In Terry v. Ohio, the Supreme Court granted law enforcement broad power to perform a limited stop and search of someone when an officer has reasonable suspicion that the person is engaged in criminal activity. The resulting “Terry stop” created a way for police officers to investigate a suspicious person without requiring full probable cause for an arrest. The officer need only have “reasonable suspicion supported by articulable facts” based on the circumstances and the officer’s policing “experience that criminal activity may be afoot.” Reasonable suspicion is—by design—a broad standard, deferential to police officers’ judgment. Law enforcement officers …

Neuroscience, Criminal Sentencing, And Human Rights, Elizabeth Shaw

William & Mary Law Review

This Article discusses ways in which neuroscience should inform criminal sentencing in the future. Specifically, it compares the ethical permissibility of traditional forms of punishment, such as incarceration, on the one hand, and rehabilitative “neurointerventions” on the other. Rehabilitative neurointerventions are interventions that aim directly to modify brain activity in order to reduce reoffending. Various jurisdictions are already using techniques that could be classed as neurointerventions, and research suggests that, potentially, an even wider range of rehabilitative neurointerventions may be developed. This Article examines the role of human rights (in particular, the moral right to mental integrity and the legal …

Collective Cognitive Capital, Emily R. D. Murphy

William & Mary Law Review

This Article calls for a new project for law and neuroscience. It outlines a structural, not individual, application of brain and behavioral science that is aligned with the general goal of basic science research: improving the lives of citizens with a better understanding of the human experience. It asks brain and behavioral science to move explicitly into public policy territory, and specifically onto ground more traditionally occupied by economists—but in ways the project of “behavioral economics” has not yet ventured. Put simply, policy analysts should focus on brains—“collective cognitive capital”—with the same intensity with which they focus on money, rights, …

Nohwere, Peter A. Alces, Robert M. Sapolsky

William & Mary Law Review

Imagine the frustration of Samuel Butler’s protagonist, Higgs, with the strange society he encounters in Erewhon:

"Was there nothing which I could say to make them feel that the constitution of a person’s body was a thing over which he or she had had at any rate no initial control whatever, while the mind was a perfectly different thing, and capable of being created anew and directed according to the pleasure of its possessor? Could I never bring them to see that while habits of mind and character were entirely independent of initial mental force and early education, the body …

Neuroscience And Criminal Justice: Time For A "Copernican Revolution"?, John S. Callender

William & Mary Law Review

The main purpose of this Article is to argue for a fundamental change in the conceptual orientation of criminal justice: from one based on concepts such as free will, desert, and moral responsibility, to one based on empirical science. The Article describes research in behavioral genetics, acquired brain injuries, and psychological traumatization in relation to criminality. This research has reached a level of development at which the traditional approach to criminality is no longer tenable and should be discarded. I argue that mental health legislation provides a model that could be adapted and applied to offenders.

How Experts Have Dominated The Neuroscience Narrative In Criminal Cases For Twelve Decades: A Warning For The Future, Deborah W. Denno

William & Mary Law Review

Phineas Gage, the man who survived impalement by a rod through his head in 1848, is considered “one of the great medical curiosities of all time.” While expert accounts of Gage's post-accident personality changes are often wildly damning and distorted, recent research shows that Gage mostly thrived, despite his trauma. Studying past cases such as Gage’s helps us imagine—and prepare for—a future of law and neuroscience in which scientific debates over the brain’s functions remain fiery, and experts divisively control how we characterize brain-injured defendants.

This Article examines how experts have long dominated the neuroscience narrative in U.S. criminal cases, …

Using Burdens Of Proof To Allocate The Risk Of Error When Assessing Developmental Maturity Of Youthful Offenders, David L. Faigman, Kelsey Geiser

William & Mary Law Review

Behavioral and neuroscientific research provides a relatively clear window into the timing of developmental maturity from adolescence to early adulthood. We know with considerable confidence that, on average, sixteen-year-olds are less developmentally mature than nineteen-year-olds, who are less developmentally mature than twenty-three-year-olds, who are less developmentally mature than twenty-six-year-olds. However, in the context of a given case, the question presented might be whether a particular seventeen-year-old defendant convicted of murder is “developmentally mature enough” that a sentence of life without parole can be constitutionally imposed on him or her. While developmental maturity can be accurately measured in group data, it …

The Constitutional Right To Carry Firearms On Campus, Jared A. Tuck

William & Mary Law Review

Do individuals have the fundamental right under the Second Amendment to carry firearms on the campus of a public university? Additionally, can a public university totally ban firearms on its campus without impeding on the constitutional right to keep and bear arms protected by the Second Amendment? This Note will argue that individuals have a narrow, but constitutionally guaranteed, right to carry firearms on the campus of a public university. Therefore, it is beyond the power of states and public universities to totally ban firearms from campus premises.