Law Commons^™

Preserving An Independent Judiciary In Turbulent Times

Stanley H. Mervis Lecture

No abstract provided.

The Meaning Of Mcdonald's [(R)], Laura A. Heymann

Popular Media

No abstract provided.

2020-2021 Supreme Court Preview: Notebook Cover Page, Allison Orr Larsen, Neal Devins, Rebecca Green, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

Our traditional notebook will not be available this year due to the virtual setting. However, we have compiled this virtual notebook to provide all participating in the Supreme Court Preview an opportunity to learn more about the upcoming docket and the issues facing the Court. We hope you enjoy the wealth of information available throughout this virtual notebook.

2020-2021 Supreme Court Preview: Schedule Of Events, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

2020-2021 Supreme Court Preview: Biographies Of 2020 Supreme Court Preview Panelists, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

The Supreme Court And The 2020 Election: What Challenges Are Likely And What Will Be The Supreme Court's Role In Deciding Them?, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

On Friday, September 11 at 5:30pm, the Supreme Court Preview will feature a panel on "The Supreme Court and the 2020 Election What Challenges are likely and what will be the Supreme Court's Role in Deciding them?" As we approach a historic election in November 2020, many anticipate that election challenges will wind up in federal court. This panel will discuss trends in COVID-related election cases at the Court so far, anticipate which challenges are likely going forward, and will speculate what the Supreme Court’s role will be in deciding them. What has changed at the Court (and otherwise) since …

What Is The Future Of The Supreme Court? Potential Reforms, Their Likelihood, And Their Implications, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

On Saturday, September 12 at 4:15pm, the Supreme Court Preview will feature a panel on "What is the Future of the Supreme Court? Potential Reforms, Their Likelihood, and Their Implications." Democrats recently unveiled “structural court reforms” as part of their platform. These potential reforms include, among others, adding seats to the Supreme Court, making changes to the confirmation process, and shortening the Justices’ terms of office. This panel will discuss which reforms seem most likely to be adopted and what concerns are motivating them. Twenty-five W&M students will also bring their questions to the panel about the future of the …

Who Is The Real John Roberts? Predicting The Surprises Of The Fall Term, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

On Saturday, September 12 at 3:00pm, the Supreme Court Preview will feature a panel on "Who is the Real John Roberts? Predicting the Surprises of the Fall Term." Chief Justice Roberts cast several votes in high-profile cases last Term that many found to be surprising, and it led to a debate over whether the Chief Justice should be described as a moderate or not. This panel will anticipate which cases in the 2020-2021 Term will provide an opportunity for the Chief Justice to cast the deciding vote, and will address whether the Chief Justice’s voting pattern in 2020 was indicative …

Transparency And The Shadow Docket, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

On Saturday, September 12 at 2:00pm, the Supreme Court Preview will feature a panel on "Transparency and the Shadow Docket." “The shadow docket” is a phrase used to describe the significant volume of orders and summary decisions that the Supreme Court issues without full briefing and oral argument. This panel will discuss what is new and what is not about the shadow docket. The panelists will speculate on the ways in which the Court will use these orders going forward, and will discuss the upsides and downsides of doing so.

Granted Cases, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Moot Court, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Comments On Mcgahn "A Brief History Of Judicial Appointments From The Last 50 Years Through The Trump Administration", Russell Wheeler

William & Mary Law Review Online

Donald McGahn is a respected member of the Washington D.C. legal community, known especially for his expertise in election law. He served as White House counsel in the Trump administration until October 2018 and was a key player in the Trump administration’s judicial appointments process.His article is witty, sometimes revealing, but above all a description, as he sees it, of the decades-long deterioration of the process for Senate confirmation of federal judicial nominees, with some blame assigning. He also provides a few behind-the-scenes looks at Trump administration confirmation battles, and some recommendations for easing contentiousness in— or at least, speeding …

Home, Schooling, And State: Education In, And For, A Diverse Democracy, Vivian E. Hamilton

Faculty Publications

Since the late nineteenth century, virtually all school-aged children have attended school; only rarely did children live and learn entirely within their homes. In recent decades, however, the practice of elective homeschooling has emerged, and the number of families opting out of regular schools has surged. Currently, the parents of nearly two million school-aged children annually eschew traditional schooling.

A small but well-resourced homeschool lobby has aggressively pressured state legislators to withdraw state oversight of homeschooling. No similarly resourced lobby exists to counterbalance these efforts. As a result, states now impose few—and in some cases, no—obligations on parents who choose …

Revisiting Individual Rights And Personal Responsibilities Amid Covid-19, Christie Warren

Popular Media

No abstract provided.

Cambridge Analytica's Black Box, Margaret Hu

Faculty Publications

The Cambridge Analytica–Facebook scandal led to widespread concern over the methods deployed by Cambridge Analytica to target voters through psychographic profiling algorithms, built upon Facebook user data. The scandal ultimately led to a record-breaking $5 billion penalty imposed upon Facebook by the Federal Trade Commission (FTC) in July 2019. The FTC action, however, has been criticized as failing to adequately address the privacy and other harms emanating from Facebook’s release of approximately 87 million Facebook users’ data, which was exploited without user authorization. This Essay summarizes the FTC’s response to the Cambridge Analytica–Facebook scandal. It concludes that the scandal focuses …

Marginal Benefits Of The Core Securities Laws, Kevin S. Haeberle

Popular Media

No abstract provided.

Brigham-Kanner Property Rights Journal, Volume 9, William & Mary Law School

Brigham-Kanner Property Rights Journal

The State of Regulatory Takings

October 3-4, 2019

Panel 1: The State of Regulatory Takings Jurisprudence: A Tribute to Eagle

Panel 2: Public Resources and Private Rights

Panel 3: Natural Gas and Other Energy Takings: Protecting Private Property Rights When the Public Interest is Promoted By a Non-Governmental Entity

Panel 4: Property and Poverty

Featured Author (Eagle)

Theories Of Prosecution, Jeffrey Bellin

Faculty Publications

For decades, legal commentators sounded the alarm about the tremendous power wielded by prosecutors. Scholars went so far as to identify uncurbed prosecutorial discretion as the primary source of the criminal justice system’s many flaws. Over the past two years, however, the conversation shifted. With the emergence of a new wave of “progressive prosecutors,” scholars increasingly hail broad prosecutorial discretion as a promising mechanism for criminal justice reform.

The abrupt shift from decrying to embracing prosecutorial power highlights a curious void at the center of criminal justice thought. There is no widely accepted normative theory of the prosecutorial role. As …

You Must Present A Valid Form Of (Gender) Identification: The Due Process And First Amendment Implications Of Tennessee's Birth Certificate Law, Brooke Lowell

William & Mary Bill of Rights Journal

This Note analyzes Tennessee’s prohibition against transgender people changing their gender markers on their birth certificates under both Fourteenth Amendment Substantive Due Process and the First Amendment. Part I discusses the relevant terms related to transgender rights, the importance of birth certificates, and the relevant laws at play. Part II focuses on the Substantive Due Process argument. It lays out the foundational cases and then applies them to analyze whether gender identity is a fundamental right. Part III explores the First Amendment analysis, focusing on gender as speech. It also discusses how government speech affects the analysis. The Note concludes …

"Buy One Get One Free": How Reindictment Policies Permit Excessive Searches, Katie Carroll

William & Mary Bill of Rights Journal

When the government decides to stop prosecuting a case, it files a nolle prosequi with the court. Nolle prosequis are slightly different from motions to dismiss. Unlike a motion to dismiss with prejudice, a prosecutor may later reindict a defendant with the same crime without a double jeopardy issue arising after dropping the same case through nolle prosequi. Furthermore, many states do not require judicial approval for a nolle prosequi. Therefore, prosecutors can gain a number of advantages by using nolle prosequi, like avoiding speedy trial deadlines or having a second chance to win important evidentiary hearings.

The advantages of …

Preventing Parkland: A Workable Fourth Amendment Standard For Searching Juveniles' Smartphones Amid School Threats In A Post-Parkland World, Andrew Mueller

William & Mary Bill of Rights Journal

On February 14, 2018, Nikolas Cruz, age nineteen, went to the Marjory Stoneman Douglas High School campus in Parkland, Florida, armed with an AR-15 rifle. He opened fire, killing seventeen students. His unspeakable actions culminated in an attack, which eclipsed the 1999 Columbine High School Massacre to become the deadliest school shooting at a high school in American history. In the immediate months following this still-recent tragedy, schools across the United States were flooded with “copycat” threats of violence. Terroristic threat charges levied against juveniles have likewise skyrocketed.

These recent events have resulted in new and burdensome pressures for schools …

Secondary Meaning And Religion: An Analysis Of Religious Symbols In The Courts, Eric D. Yordy, Elizabeth Brown

William & Mary Bill of Rights Journal

In the Supreme Court’s most recent freedom of religion case, Justice Alito and Justice Ginsburg disagreed about the actual and potential meaning of the Latin cross, a traditional symbol of Christianity in which the upright leg of the cross is longer than the horizontal arms of the cross. Justice Alito stated that the Latin cross, while not losing its religious meaning, has acquired what might be called a “secondary meaning” as a symbol of World War I. He couched his analysis in language suggesting that a religious symbol’s meaning may depend on its circumstances. While he also denied that he …

The Death Of Non-Resident Contribution Limit Bans And The Birth Of The New Small, Swing State, George J. Somi

William & Mary Bill of Rights Journal

New Hampshire’s 1st Congressional District race in 2018 featured an eye-popping number: 96.7. That figure represents the percentage of candidate Maura Sullivan’s individual contributions derived from out-of-state, non–New Hampshire donors. In August 2018, of the $1.37 million USD of individual contributions that Sullivan had raised, only 3.3%—$46,648 USD—originated from in-state contributors. Sullivan had received individual donations amounting to $497,405 USD from Boston, $216,359 USD from New York City, $101,562 USD from the Washington, D.C. metropolitan area, and $92,371 USD from San Francisco.

In nearby Maine, campaign finance reports filed on October 15, 2019, with the Federal Election Commission (FEC) indicate …

Tasing The Constitution: Conducted Electrical Weapons, Other Forceful Arrest Means, And The Validity Of Subsequent Constitutional Rights Waivers, Andreas Kuersten

William & Mary Bill of Rights Journal

Conducted electrical weapons (CEWs)—the most famous and widely used of which are offered under the TASER brand—are ubiquitous tools of law enforcement, carried by the vast majority of law enforcement officers and routinely deployed. These devices subdue targets by coursing electric current through their bodies, thereby causing individuals to collapse as their muscles involuntarily contract. Yet this method of operation has raised concerns—voiced by researchers, advocates, and criminal defendants alike—that CEWs influence cognitive capacity in addition to muscle function as electric current potentially transits through the brain via the central nervous system. In the context of an arrest, this implicates …

Dissent, Disagreement And Doctrinal Disarray: Free Expression And The Roberts Court In 2020, Clay Calvert

William & Mary Bill of Rights Journal

Using the United States Supreme Court’s 2019 rulings in Manhattan Community Access Corp. v. Halleck, Nieves v. Bartlett, and Iancu v. Brunetti as analytical springboards, this Article explores multiple fractures among the Justices affecting the First Amendment freedoms of speech and press. All three cases involved dissents, with two cases each spawning five opinions. The clefts compound problems witnessed in 2018 with a pair of five-to-four decisions in National Institute of Family and Life Advocates v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. Partisan divides, the Article argues, are only one problem with First Amendment …

Verified Amended Complaint By Next Friend James Dwyer Against Defendants Norfolk Department Of Human Services (Ndhs), James G. Dwyer

Faculty Publications

No abstract provided.

Section 1983 & Qualified Immunity: Qualifying The Death Of Due Process And America's Most Vulnerable Classes Since 1871. Can It Be Fixed?, Gabrielle Pelura

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

No abstract provided.

Puerto Rico Post-Hurricane Maria: Reconstruction And The Pathway To Self-Determination, Ameya A. Lele

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

No abstract provided.

Transracial Adoptions In America: An Analysis Of The Role Of Racial Identity Among Black Adoptees And The Benefits Of Reconceptualizing Success Within Adoptions, Jessica M. Hadley

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

No abstract provided.

Consent In Marriage: A Radical Feminist Analysis Of Pakistani Law, Iqra Saleem Khan

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

In Abdul Kadir v. Salima, Mahmood J summarised the nature of a Pakistani wife’s duties under Islamic Law. The nikkah contract “imposes submission on the wife when summoned to the couch and confers on him the power of correction when she is disobedient or rebellious.” Earlier, a similar pronouncement was made across the ocean in the United Kingdom by Sir Matthew Hale that through the marriage contract the “wife hath given herself to the husband, consent of which she cannot retract.” Marital rape was later recognised as an offence in the UK by the House of Lords in R …