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William & Mary Law Review

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Full-Text Articles in Law

Constitutional Injury And Tangibility, Rachel Bayefsky May 2018

Constitutional Injury And Tangibility, Rachel Bayefsky

William & Mary Law Review

The Supreme Court, in the 2016 case Spokeo, Inc. v. Robins, announced a framework for determining whether a plaintiff had alleged an injury that would permit entry into federal court. The Court indicated that a plaintiff, in order to have constitutional standing, needed to suffer harm that was “concrete” or “real.” In explaining how courts could ascertain whether an alleged harm was concrete, the Court created a category of “intangible” harm subject to a distinctive, and arguably more demanding, concreteness inquiry than “tangible” harm, a category that seemingly includes only physical or economic harm. In particular, Spokeo directed courts to ...


Accidents And Aggregates, Lee Anne Fennell May 2018

Accidents And Aggregates, Lee Anne Fennell

William & Mary Law Review

Tort law responds to discrete, harmful events—“accidents”—by converting unruly facts into a binary on/off judgment about liability. This operation, characteristic of much of law, resembles the “thresholding” process used to convert grayscale images to black and white. It embeds decisions about how to isolate and evaluate the sample of risk-related behavior connected to the accident. This Article focuses on the implicit but powerful role that aggregation—of behavior, precautions, and events—plays in the determination of liability. These aggregative choices determine how large a slice of an injurer’s conduct tort law will capture within its viewfinder ...


Borrowing In The Shadow Of Death: Another Look At Probate Lending, David Horton May 2018

Borrowing In The Shadow Of Death: Another Look At Probate Lending, David Horton

William & Mary Law Review

“Fringe” lending has long been controversial. Three decades ago, demand for subprime credit soared, and businesses started to offer high-interest rate cash advances, such as tax refund anticipation loans, payday loans, and pension loans. These products have sparked intense debate and are subject to a maze of rules.

However, in Probate Lending, published in the Yale Law Journal, a coauthor and I examined a form of fringe lending that has gone largely unnoticed: firms that pay lump sums in return for an heir or beneficiary’s interest in a pending decedent’s estate. Capitalizing on a California law that requires ...


Whom Should We Punish, And How? Rational Incentives And Criminal Justice Reform, Keith N. Hylton May 2018

Whom Should We Punish, And How? Rational Incentives And Criminal Justice Reform, Keith N. Hylton

William & Mary Law Review

This Article sets out a comprehensive account of rational punishment theory and examines its implications for criminal law reform. Specifically, what offenses should be subjected to criminal punishment, and how should we punish? Should we use prison sentences or fines, and when should we use them? Should some conduct be left to a form of market punishment through private lawsuits? Should fines be used to fund the criminal justice system? The answers I offer address some of the most important public policy issues of the moment, such as mass incarceration and the use of fines to finance law enforcement. The ...


Following Oregon’S Trail: Implementing Automatic Voter Registration To Provide For Improved Jury Representation In The United States, Julie A. Cascino May 2018

Following Oregon’S Trail: Implementing Automatic Voter Registration To Provide For Improved Jury Representation In The United States, Julie A. Cascino

William & Mary Law Review

No abstract provided.


Embracing The Chinese Exclusion Case: An International Law Approach To Racial Exclusions, Lauri Kai May 2018

Embracing The Chinese Exclusion Case: An International Law Approach To Racial Exclusions, Lauri Kai

William & Mary Law Review

No abstract provided.


A Reasonable Bias Approach To Gerrymandering: Using Automated Plan Generation To Evaluate Redistricting Proposals, Bruce E. Cain, Wendy K. Tam Cho, Yan Y. Liu, Emily R. Zhang Apr 2018

A Reasonable Bias Approach To Gerrymandering: Using Automated Plan Generation To Evaluate Redistricting Proposals, Bruce E. Cain, Wendy K. Tam Cho, Yan Y. Liu, Emily R. Zhang

William & Mary Law Review

No abstract provided.


Race And Representation Revisited: The New Racial Gerrymandering Cases And Section 2 Of The Vra, Guy-Uriel E. Charles, Luis Fuentes-Rohwer Apr 2018

Race And Representation Revisited: The New Racial Gerrymandering Cases And Section 2 Of The Vra, Guy-Uriel E. Charles, Luis Fuentes-Rohwer

William & Mary Law Review

No abstract provided.


From Educational Adequacy To Representational Adequacy: A New Template For Legal Attacks On Partisan Gerrymanders, Christopher S. Elmendorf Apr 2018

From Educational Adequacy To Representational Adequacy: A New Template For Legal Attacks On Partisan Gerrymanders, Christopher S. Elmendorf

William & Mary Law Review

For decades, legal attacks on partisan gerrymanders have foundered on a manageability dilemma: doctrinal standards the Supreme Court has regarded as judicially discoverable have been rejected as unmanageable, whereas the more manageable standards on offer have been dismissed as insufficiently tethered to the Constitution—that is, as undiscoverable. This Article contends that a solution to the dilemma may be found in a seemingly unlikely place: the body of state constitutional law concerned with the adequacy of state systems of public education. The justiciability barriers to partisan gerrymandering claims have near analogues in educational adequacy cases, yet only a minority of ...


Taking Virtual Representation Seriously, Joseph Fishkin Apr 2018

Taking Virtual Representation Seriously, Joseph Fishkin

William & Mary Law Review

No abstract provided.


The Gerrymander And The Constitution: Two Avenues Of Analysis And The Quest For A Durable Precedent, Edward B. Foley Apr 2018

The Gerrymander And The Constitution: Two Avenues Of Analysis And The Quest For A Durable Precedent, Edward B. Foley

William & Mary Law Review

It has been notoriously difficult for the United States Supreme Court to develop a judicially manageable—and publicly comprehensible—standard for adjudicating partisan gerrymandering claims, a standard comparable in this respect to the extraordinarily successful “one person, one vote” principle articulated in the Reapportionment Revolution of the 1960s. This difficulty persists because the quest has been for a gerrymandering standard that is universalistic in the same way that “one person, one vote” is: derived from abstract ideas of political theory, like the equal right of citizens to participate in electoral politics. But other domains of constitutional law employ particularistic modes ...


Redistricting Transparency, Rebecca Green Apr 2018

Redistricting Transparency, Rebecca Green

William & Mary Law Review

Until recently, legislative redistricting remained a relatively obscure topic for most Americans. In the upcoming 2020 round, increased public interest in the problem of gerrymandering, combined with the rise of technologies that empower public participation, will fuel public scrutiny of state redistricting processes at levels never before experienced. Are states prepared for this oversight onslaught? Will current redistricting transparency rules frustrate or nurture growing public interest? Can states take steps in advance of 2020 to ensure meaningful and productive public participation during the redistricting process? A thoughtful approach to redistricting transparency can both improve resulting maps and stave off litigation ...


Race Or Party, Race As Party, Or Party All The Time: Three Uneasy Approaches To Conjoined Polarization In Redistricting And Voting Cases, Richard L. Hasen Apr 2018

Race Or Party, Race As Party, Or Party All The Time: Three Uneasy Approaches To Conjoined Polarization In Redistricting And Voting Cases, Richard L. Hasen

William & Mary Law Review

No abstract provided.


Something Old, Something New, Or Something Really Old? Second Generation Racial Gerrymandering Litigation As Intentional Racial Discrimination Cases, Dale E. Ho Apr 2018

Something Old, Something New, Or Something Really Old? Second Generation Racial Gerrymandering Litigation As Intentional Racial Discrimination Cases, Dale E. Ho

William & Mary Law Review

No abstract provided.


Reapportionment, Nonapportionment, And Recovering Some Lost History Of One Person, One Vote, Pamela S. Karlan Apr 2018

Reapportionment, Nonapportionment, And Recovering Some Lost History Of One Person, One Vote, Pamela S. Karlan

William & Mary Law Review

No abstract provided.


Section 2 After Section 5: Voting Rights And The Race To The Bottom, Ellen D. Katz Apr 2018

Section 2 After Section 5: Voting Rights And The Race To The Bottom, Ellen D. Katz

William & Mary Law Review

No abstract provided.


Intent Is Enough: Invidious Partisanship In Redistricting, Justin Levitt Apr 2018

Intent Is Enough: Invidious Partisanship In Redistricting, Justin Levitt

William & Mary Law Review

When the Supreme Court last seriously grappled with partisan gerrymandering, all nine Justices concluded that an excessive injection of politics in the redistricting process violates the Constitution, but failed to agree on what is excessive (or who should decide). Commentators have since offered no shortage of assistance, offering various models to resolve exactly “how much is too much.” This effort is a sprint to answer the wrong question. It is perhaps the question Justices have asked, but not the one best illuminating the problem.

This Article suggests an alternative: not “how much,” but “what kind.” The Court wants to distinguish ...


Prophylactic Redistricting? Congress’S Section 5 Power And The New Equal Protection Right To Vote, Michael T. Morley Apr 2018

Prophylactic Redistricting? Congress’S Section 5 Power And The New Equal Protection Right To Vote, Michael T. Morley

William & Mary Law Review

The Voting Rights Act (VRA) has been an important mechanism for increasing participation by racial minorities in the electoral system. In recent years, however, the Supreme Court has demonstrated its willingness to reconsider the VRA’s constitutionality. Due to the broad prophylactic scope of section 2 of the VRA, two main developments pose risks to its continued validity.

First, the Supreme Court narrowed Congress’s enforcement power under Section 5 of the Fourteenth Amendment in City of Boerne v. Flores, and is likely to interpret Section 2 of the Fifteenth Amendment similarly. Section 2 of the VRA features many key ...


The Causes And Consequences Of Gerrymandering, Nicholas O. Stephanopoulos Apr 2018

The Causes And Consequences Of Gerrymandering, Nicholas O. Stephanopoulos

William & Mary Law Review

In recent years, scholars have made great strides in measuring the extent of partisan gerrymandering. By and large, though, they have not yet tried to answer the questions that logically come next: What are the causes of district plans’ partisan skews? And what consequences do these skews have for democratic values? Using a unique dataset of state house and congressional plans’ partisan tilts from 1972 to 2016, this Article addresses precisely these issues. It finds that single-party control of the redistricting process dramatically benefits the party in charge, while other mapmaking configurations have small and inconsistent effects. It also shows ...


Gerrymandering And Association, Daniel P. Tokaji Apr 2018

Gerrymandering And Association, Daniel P. Tokaji

William & Mary Law Review

No abstract provided.


Election Law “Federalism” And The Limits Of The Antidiscrimination Framework, Franita Tolson Apr 2018

Election Law “Federalism” And The Limits Of The Antidiscrimination Framework, Franita Tolson

William & Mary Law Review

If the United States Supreme Court conceived of the right to vote as an active entitlement that safeguards other fundamental rights rather than as a passive privilege that permits courts to prioritize state sovereignty over broad enfranchisement, then many of the errors that have become commonplace in our system of elections would not occur. It is unlikely, however, that the Court will take the steps necessary to extend the constitutional protections afforded to the right to vote. In recent years, the Court has sharply circumscribed Congress’s ability to protect the right to vote under the Fourteenth and Fifteenth Amendments ...


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 ...


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 ...


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 ...


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.


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 ...