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College of William & Mary Law School

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Articles 1 - 30 of 3306

Full-Text Articles in Law

Counterfeit Campaign Speech, Rebecca Green Aug 2019

Counterfeit Campaign Speech, Rebecca Green

Faculty Publications

We are entering an era in which computers can manufacture highly-sophisticated images, audio, and video of people doing and saying things they have, in fact, not done or said. In the context of political campaigns, the danger of “counterfeit campaign speech” is existential. Do current laws adequately regulate faked candidate speech? Can counter speech effectively neutralize it? Because it takes place in the vaulted realm of core political speech, would the First Amendment stymie any attempt to outlaw it? Many smart people who have looked at the general problem of deceit in campaigns have concluded that the state has no ...


Justice On The Line: Prosecutorial Screening Before Arrest, Adam M. Gershowitz Aug 2019

Justice On The Line: Prosecutorial Screening Before Arrest, Adam M. Gershowitz

Faculty Publications

Police make more than eleven million arrests every year. Yet prosecutors dismiss about 25% of criminal charges with no conviction being entered. Needless arrests are therefore clogging the criminal justice system and harming criminal defendants. For instance, Freddie Gray was fatally injured in police custody after being arrested for possession of a switchblade knife. Prosecutors later announced, however, that they did not believe the knife was actually illegal. If prosecutors had to approve warrantless arrests before police could take suspects into custody, Freddie Gray would still be alive. Yet prosecutors’ offices almost never dictate who the police should or should ...


Trust And Retaliation: The First Amendment And Trump’S Taxes, Timothy Zick Jul 2019

Trust And Retaliation: The First Amendment And Trump’S Taxes, Timothy Zick

Popular Media

No abstract provided.


The President’S Utterly Un-American Response To Dissent, Timothy Zick Jul 2019

The President’S Utterly Un-American Response To Dissent, Timothy Zick

Popular Media

No abstract provided.


The Semantics And Pragmatics Of Legal Statements, Michael S. Green Jun 2019

The Semantics And Pragmatics Of Legal Statements, Michael S. Green

Popular Media

No abstract provided.


The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove Jun 2019

The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove

Faculty Publications

No abstract provided.


The Power Of Prosecutors, Jeffrey Bellin May 2019

The Power Of Prosecutors, Jeffrey Bellin

Faculty Publications

One of the predominant themes in the criminal justice literature is that prosecutors dominate the justice system. Over seventy-five years ago, Attorney General Robert Jackson famously proclaimed that the “prosecutor has more control over life, liberty, and reputation than any other person in America.” In one of the most cited law review articles of all time, Bill Stuntz added that prosecutors—not legislators, judges, or police—“are the criminal justice system’s real lawmakers.” And an unchallenged modern consensus holds that prosecutors “rule the criminal justice system.”

This Article applies a critical lens to longstanding claims of prosecutorial preeminence. It ...


Qualified Immunity And Constitutional Structure, Katherine Mims Crocker May 2019

Qualified Immunity And Constitutional Structure, Katherine Mims Crocker

Faculty Publications

A range of scholars has subjected qualified immunity to a wave of criticism— and for good reasons. But the Supreme Court continues to apply the doctrine in ever more aggressive ways. By advancing two claims, this Article seeks to make some sense of this conflict and to suggest some thoughts toward a resolution.

First, while the Court has offered and scholars have rejected several rationales for the doctrine, layering in an account grounded in structural constitutional concerns provides a historically richer and analytically thicker understanding of the current qualified-immunity regime. For suits against federal officials, qualified immunity acts as a ...


An Organizational Account Of State Standing, Katherine Mims Crocker May 2019

An Organizational Account Of State Standing, Katherine Mims Crocker

Faculty Publications

Again and again in regard to recent high-profile disputes, the legal community has tied itself in knots over questions about when state plaintiffs should have standing to sue in federal court, especially in cases where they seek to sue federal-government defendants. Lawsuits challenging everything from the Bush administration’s environmental policies to the Obama administration’s immigration actions to the Trump administration’s travel bans have become mired in tricky and technical questions about whether state plaintiffs belonged in federal court.

Should state standing cause so much controversy and confusion? This Essay argues that state plaintiffs are far more like ...


Recent Case Shows Flaws In Va Benefits, David E. Boelzner Apr 2019

Recent Case Shows Flaws In Va Benefits, David E. Boelzner

Popular Media

No abstract provided.


William & Mary Law School Clinic News, William & Mary Law School Apr 2019

William & Mary Law School Clinic News, William & Mary Law School

William & Mary Law School Clinical Program Newsletter

No abstract provided.


From Stele To Silicon: Publication Of Statutes, Public Access To The Law, And The Uniform Electronic Legal Material Act, Frederick W. Dingledy Apr 2019

From Stele To Silicon: Publication Of Statutes, Public Access To The Law, And The Uniform Electronic Legal Material Act, Frederick W. Dingledy

Library Staff Publications

For a legal system to succeed, its laws must be available to the public it governs. This article looks at the methods used by different governments throughout history to publicize legislation and the rulers’ possible motivations for publication. It concludes by discussing how the Uniform Electronic Legal Material Act provides the next logical step in this long tradition of publicizing the law.


Who Owns The Law? How To Restore Public Ownership Of Legal Publication, Leslie A. Street, David R. Hansen Apr 2019

Who Owns The Law? How To Restore Public Ownership Of Legal Publication, Leslie A. Street, David R. Hansen

Library Staff Publications

No abstract provided.


The Challenge Of Convicting Ethical Prosecutors That Their Profession Has A Brady Problem, Adam M. Gershowitz Apr 2019

The Challenge Of Convicting Ethical Prosecutors That Their Profession Has A Brady Problem, Adam M. Gershowitz

Faculty Publications

In recent decades, both the media and legal scholars have documented the widespread problem of prosecutors failing to disclose favorable evidence to the defense – so called Brady violations. Despite all of this documentation however, many ethical prosecutors reject the notion that the criminal justice system has a Brady problem. These prosecutors – ethical lawyers who themselves have not been accused of misconduct – believe that the scope of the Brady problem is exaggerated. Why do ethical prosecutors downplay the evidence that some of their colleagues have committed serious errors?

This essay, in honor of Professor Bennett Gershman, points to what psychologists have ...


Policing The Admissibility Of Body Camera Evidence, Jeffrey Bellin, Shevarma Pemberton Mar 2019

Policing The Admissibility Of Body Camera Evidence, Jeffrey Bellin, Shevarma Pemberton

Faculty Publications

Body cameras are sweeping the nation and becoming, along with the badge and gun, standard issue for police officers. These cameras are intended to ensure accountability for abusive police officers. But, if history is any guide, the videos they produce will more commonly be used to prosecute civilians than to document abuse. Further, knowing that the footage will be available as evidence, police officers have an incentive to narrate body camera videos with descriptive oral statements that support a later prosecution. Captured on an official record that exclusively documents the police officer’s perspective, these statements—for example, “he just ...


Right On Time: First Possession In Property And Intellectual Property, Dotan Oliar, James Y. Stern Mar 2019

Right On Time: First Possession In Property And Intellectual Property, Dotan Oliar, James Y. Stern

Faculty Publications

How should we allocate property rights in unowned tangible and intangible resources? This Article develops a model of original acquisition that draws together common law doctrines of first possession with original acquisition doctrines in patent, copyright, and trademark law. The common denominator is time: in each context, doctrine involves a trade-off between assigning entitlements to resources earlier or later in the process of their development and use. Early awards risk granting exclusivity to parties who may not be capable of putting resources to their best use. Late awards prolong contests for ownership, which may generate waste or discourage acquisition efforts ...


Unequal Enforcement Of The Law: Targeting Aggressors For Mass Atrocity Prosecutions, Nancy Amoury Combs Mar 2019

Unequal Enforcement Of The Law: Targeting Aggressors For Mass Atrocity Prosecutions, Nancy Amoury Combs

Faculty Publications

It is a central tenet of the laws of war that they apply equally to all parties to a conflict. For this reason, a party that illegally launches a war benefits from all the same rights as a party that must defend against the illegal aggression. Countless philosophers have shown that this so-called equal application doctrine is morally indefensible and that defenders should have more rights and fewer responsibilities than aggressors. The equal application doctrine retains the support of legal scholars, however, because they reasonably fear that applying different rules to different warring parties will substantially reduce overall compliance with ...


Criminal-Justice Apps: A Modest Step Toward Democratizing The Criminal Process, Adam M. Gershowitz Feb 2019

Criminal-Justice Apps: A Modest Step Toward Democratizing The Criminal Process, Adam M. Gershowitz

Faculty Publications

No abstract provided.


Government Standing And The Fallacy Of Institutional Injury, Tara Leigh Grove Feb 2019

Government Standing And The Fallacy Of Institutional Injury, Tara Leigh Grove

Faculty Publications

A new brand of plaintiff has come to federal court. In cases involving the Affordable Care Act, the Defense of Marriage Act, and partisan gerrymandering, government institutions have brought suit to redress “institutional injuries”—that is, claims of harm to their constitutional powers or duties. Jurists and scholars are increasingly enthusiastic about these lawsuits, arguing (for example) that the Senate should have standing to protect its power to ratify treaties; that the House of Representatives may sue to preserve its role in the appropriations process; and that the President may go to court to vindicate his Article II prerogatives. This ...


International Criminal Court Comes Of Age, Nancy Amoury Combs Jan 2019

International Criminal Court Comes Of Age, Nancy Amoury Combs

Popular Media

No abstract provided.


How Bitcoin Functions As Property Law, Eric D. Chason Jan 2019

How Bitcoin Functions As Property Law, Eric D. Chason

Faculty Publications

Bitcoin replicates many of the formal aspects of real estate transactions. Bitcoin transactions have features that closely resemble grantor names, grantee names, legal descriptions, and signatures found in real property deeds. While these “Bitcoin deeds” may be interesting, they are not profound. Bitcoin goes beyond creating simple digital deeds, however, and replicates important institutional aspects of real estate transactions, in particular recordation and title assurance. Deeds to real property are recorded in a central repository (e.g., the public records office), which the parties (and the public) can search to determine title. When one grantor executes more than one deed ...


Of Piketty And Perpetuities: Dynastic Wealth In The Twenty-First Century (And Beyond), Eric Kades Jan 2019

Of Piketty And Perpetuities: Dynastic Wealth In The Twenty-First Century (And Beyond), Eric Kades

Faculty Publications

For the first time since independence, in a nation founded in large part on the rejection of a fixed nobility determined by birth and perpetuated by inheritance, America is paving the way for the creation of dynastic family wealth. Abolition of the Rule Against Perpetuities in over half the states along with sharp reductions in, and likely elimination of, the federal estate tax mean that there soon will be no obstacles to creating large pools of dynastic wealth insuring lavish incomes to heirs for generations without end. The timing of these legal changes could hardly be worse. Marshaling innovative economic ...


Reasonable Appropriation And Reader Response, Laura A. Heymann Jan 2019

Reasonable Appropriation And Reader Response, Laura A. Heymann

Faculty Publications

Since the U.S. Supreme Court’s decision in Campbell v. Acuff-Rose Music, Inc., many courts have considered, when evaluating a claim of fair use in copyright, whether the defendant’s use of the plaintiff’s work is “transformative,” which the Campbell Court described as “add[ing] something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”

In Cariou v. Prince, the Second Circuit shifted the focus of the analysis, both confirming that a work could be transformative even if it did not comment on the original work or its author and ...


Retrospective: 30 Lessons Learned (And A Few Strokes Of Luck) At The Crossroads, James S. Heller Jan 2019

Retrospective: 30 Lessons Learned (And A Few Strokes Of Luck) At The Crossroads, James S. Heller

Library Staff Publications

No abstract provided.


Corporations As Semi-States, Jay Butler Jan 2019

Corporations As Semi-States, Jay Butler

Faculty Publications

When Ebola came to West Africa in 2014, Liberia could not cope. The State’s already fragile public health infrastructure was largely ineffective in responding to the illness and preventing its spread. And, the World Health Organization’s support was slow and stilted. By contrast, Firestone, a tire company that operates a vast rubber plantation in Liberia and runs its own hospital for 80,000 employees, family dependents, and persons in neighboring localities, responded to the virus much more effectively.

This Article uses Firestone’s Ebola response as an entry point to study a phenomenon too frequently overlooked. Many for-profit ...


A Chance To End Gerrymandering In Virginia, A. E. Dick Howard, Rebecca Green Dec 2018

A Chance To End Gerrymandering In Virginia, A. E. Dick Howard, Rebecca Green

Popular Media

No abstract provided.


Halted Innovation: The Expansion Of Federal Jurisdiction Over Medicine And The Human Body, Myrisha S. Lewis Dec 2018

Halted Innovation: The Expansion Of Federal Jurisdiction Over Medicine And The Human Body, Myrisha S. Lewis

Faculty Publications

Modern medical innovations are blurring the line between medical practice and medical devices and drugs. Historically, many techniques have been developed in medicine, without any interference from the federal government, as medical practice is (and has historically been) an area of state jurisdiction. Over the past two decades, however, the U.S. Food and Drug Administration (FDA) has been exerting jurisdiction over the human body and the practice of medicine by targeting new medical techniques for oversight and subjecting the continued use of those treatments to onerous and legally questionable regulatory requirements that hinder the use of those treatments in ...


Copyright And The Single Work, Laura A. Heymann Nov 2018

Copyright And The Single Work, Laura A. Heymann

Popular Media

No abstract provided.


Children’S Welfare And The State’S Fiduciary Responsibility, James G. Dwyer Nov 2018

Children’S Welfare And The State’S Fiduciary Responsibility, James G. Dwyer

Popular Media

No abstract provided.


Which Side Are You On?, James G. Dwyer Nov 2018

Which Side Are You On?, James G. Dwyer

Popular Media

No abstract provided.