Digital Commons Network^™

Getting Our House In Order: Mapping The Unconstitutional Conditions Doctrine Onto Washington’S Inclusionary Zoning Policies After Sheetz V. County Of El Dorado, John “Jack” Haskins

Washington Law Review

The unconstitutional conditions doctrine dictates what a government can and cannot do when exercising its police powers to promote community interests. Recent Supreme Court jurisprudence highlights a special application of the doctrine in the land use context, with Sheetz v. County of El Dorado recognizing constitutional scrutiny of legislative decisions. After decades of using its own analysis, Washington courts now use the federal approach in these cases. Land use exists at the forefront of Washington policies and the state maintains a sharp focus on the affordable housing crisis. One approach enacted at the local and state level is mandatory inclusionary …

Animus, Again, William D. Araiza

William & Mary Bill of Rights Journal

In the first week of his second term, President Donald Trump issued multiple executive orders targeting immigrants and transgender people. Additional actions targeting these and other vulnerable groups have already followed. Others may come; more generally, such orders will likely remain a part of the President’s policy agenda and governing style. These actions call for analysis of the legal tools litigants can deploy to challenge them. That call is urgent, as a response not just to the orders already issued, but to others the Administration might promulgate in the future.

One of those tools is equal protection animus. This Article …

Holding The Line: Maryland's Federal Accountability Unit And The Fight Against Unlawful Federal Actions, Mehek Singh

Celebrating WCL Student Authors

Introduction

In an era marked by sharp divisions between the states and the federal government, the Maryland Office of the Attorney General (OAG), with the support of the Maryland General Assembly and the Governor, created an essential mechanism for protecting Maryland's laws, funding, and programs: the Federal Accountability Unit (FAU). Established in the wake of escalating federal actions that threaten Maryland's legal and policy interests as well as the civil rights of Marylanders, particularly since the beginning of the Trump administration's second term, the FAU stands as a coordinated, impact-driven legal force. Its mission is straightforward: to monitor, challenge, and …

Statutory Copy-Pasting In The Law Of Sovereign Immunity, Chimène I. Keitner

William & Mary Law Review

Congress sometimes copy-pastes language from one statute into another statute. While this can serve the goals of consistency and efficiency, copy-pasting can cause problems when done across disparate legal regimes, such as different sovereign immunity doctrines. When Congress enacted the Foreign Sovereign Immunities Act (FSIA) of 1976, it borrowed language from the Federal Tort Claims Act (FTCA) of 1946 that exempts the exercise of “discretionary functions” from tort jurisdiction. Both statutes allow private damages claims against governmental entities in defined circumstances. Despite this superficial similarity, the statutes were enacted in very different contexts and serve fundamentally different purposes. Nonetheless, courts …

The Jurisprudence Of Constitutional Entitlement, David Schraub

William & Mary Bill of Rights Journal

Lawyers are accustomed to thinking of constitutional law as a familiar binary: Either a given governmental policy or practice is constitutional and therefore permitted, or unconstitutional and forbidden. But not all constitutional laws are created equal. A state practice which may be constitutional in concept (such as the death penalty) may, in some or many applications, violate specific constitutional rules and become impermissible. When a policy which has been affirmed to be constitutional in general repeatedly runs up against problems as-applied, a legal tension emerges: can the state implement the policy or not? This dilemma illuminates a third constitutional category: …

Compassionate Causation In The Domestic Violence Survivors Justice Act, Zoë Lewis Ewing

University of Chicago Law Review

This Comment evaluates the implementation of the Domestic Violence Survivors Justice Act (DVSJA), a New York law passed in 2019 to provide shortened sentencing ranges for domestic violence survivors convicted of crimes. It identifies an inconsistency in sentencing courts’ application of the law’s causation standard, which requires that a petitioner’s experience of domestic violence be a “significant contributing factor” to their criminal conduct. Some courts interpret the prong narrowly, while others apply a broad causation standard. This Comment argues that courts should opt for the latter approach and consider causation in the DVSJA satisfied if domestic violence was “sufficiently significant …

A State Constitutional Challenge To Washington’S Denial Of Minimum Wage To Incarcerated Workers, Cailin Dahlin

Washington Law Review

This Comment challenges as unconstitutional Washington’s exemption of incarcerated individuals from the state Minimum Wage Act. Incarcerated people in Washington, unprotected by minimum wage guarantees, earn low wages in state-run inmate work programs. This statutory carveout is contrary to the rehabilitative purpose of Washington’s prisons because it impedes incarcerated people’s ability to afford necessities, participate in rehabilitative programs, and reintegrate into society. This exemption is unconstitutional under the state’s cruel punishment clause, because it is disproportionately cruel punishment and an excessive fine that incarcerated workers cannot afford. The exemption is also unconstitutional under the state’s privileges and immunities clause, because …

Criminalization Of Landlord/Tenant Law: Arkansas’ “Failure To Vacate” Statute, Anastacia Greene

Law Faculty Scholarship

Arkansas is not a notable state. It is often confused with Kansas or Alabama. It is difficult for most Americans to find on a map. Perhaps Arkansas has few distinctions. However, it is the only place in the country where a tenant can be thrown in jail for missing a rental payment. The legal landscape of Arkansas is unique in many ways, primarily in its old-fashioned, even archaic, view of property law.

First, this article examines the history behind the Failure to Vacate statute. Next, this article reviews the constitutional challenges that the statute has faced, and recent litigation. Then, …

Making Youth Matter, Kimberly Ambrose

Washington Law Review

Gun violence is the leading cause of death for children and adolescents in the United States. The harm caused by this public health crisis falls disproportionately on Black and Brown youth. While it is broadly accepted that children are less blameworthy than adults for their criminal behavior, what does this mean when they have access to and use guns? The Supreme Court held that youth matters when juveniles face life without parole sentences because children are different from adults—they fail to appreciate risks and consequences; are more impulsive; more susceptible to peer and family influence; less able to remove themselves …

Rethinking Courtroom Presence In The Virtual Era, Jenia Iontcheva Turner

Indiana Law Journal

Technological innovation has made virtual appearances by criminal defendants increasingly common. These appearances have advanced efficiency but also raised questions about the scope of both the right and the duty of defendants to be physically present in court. Should judges, for example, be allowed to hold virtual arraignments, even if a defendant wishes to appear in person? Can defendants opt for virtual appearances at will? While courts are beginning to address these questions, they have yet to develop a coherent framework to evaluate when virtual appearances are constitutional and appropriate. This Article seeks to contribute to this project by examining …

Can Ai Empower The Rule Of Law?, Eleftheria Papadaki

North Carolina Journal of Law & Technology

No abstract provided.

Future Crime: A Theoretical Foundation For Designing Effective Cybercrime Laws In The Age Of Ai And Ransomware, Thi Ha Do, Niloufer Selvadurai

North Carolina Journal of Law & Technology

No abstract provided.

The Sec Proposed Cybersecurity Infrastructure Rules And New Disclosure Requirements, Neal F. Newman, Lawrence J. Trautman, Brian Elzweig

Faculty Scholarship

In addition to regulation of securities market issuers, the Securities & Exchange Commission (SEC) is also responsible for regulation of those entities that provide the networks, either electronic or physical, that enable the functioning of our securities markets. On February 9, 2022, the Commission published a Release for Cybersecurity Risk Management for Investment Advisers, Registered Investment Companies, and Business Development Companies containing proposals that, if adopted, would establish a new cybersecurity incident reporting and disclosure regime and require registered investment advisers (“advisers”) and investment companies (“funds”) to implement policies and procedures designed to address cyber risks. The comment period for …

A Speaker-Based Approach To Content Moderation: The Case Of Livestreaming, Maayan Perel

Vanderbilt Journal of Entertainment & Technology Law

Livestreams on social media represent a unique form of User-Generated Content. Delivering events and experiences in real time, while turning passive listeners into an involved audience, livestreaming facilitates users’ engagement and participation. Streaming promotes freedom of expression and facilitates diversity and pluralism in news reporting. It further allows users to maintain truth and authenticity in a potentially fabricated realm of Generative Artificial Intelligence (AI). Speakers are eager to capitalize on the instantaneous nature of livestreaming; some are using it to document newsworthy events or promote business interests, and others exploiting it by spreading unlawful and malicious content in pursuit of …

Not Born A Democracy: Constitutional Preconditions, Martha Minow

William & Mary Law Review

Beneath growing perceptions of constitutional crisis and democratic fragility in the United States lies a fundamental conundrum. Critical preconditions for effective self-government are either weak or missing in action, and our constitutional system, at least for now, stands in the way of actions to strengthen or build those preconditions. This Article focuses on three essential predicates for constitutional democracy that face jeopardy: education, reliable news, and security against lethal violence. As basic as these elements may be, repeated efforts to secure a federal constitutional right to education have failed in the courts. Because of a confluence of legal, technological, and …

Border Decriminalization As A State Project: Lessons From Marijuana And Assisted Suicide Legalization Across The United States, Victor C. Romero

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

My prior work argued for the decriminalization of border crossings without proof of specific intent to violate another law (like drug trafficking), which is even less likely to happen now than it was when the piece was published, given the current presidential administration’s zealous deportation strategy and Congress’s seeming acquiescence. As such, I advocate for a second-best solution involving federal-state cooperative agreements wherein border states abutting both Mexico and Canada are given the option by the federal government to pass local legislation decriminalizing border crossings into their states as their communities desire. To the extent that the current presidential administration …

Environmental Bankers: States Are Billing Fossil Fuel Companies For Extreme Weather Disasters, Kelly A. Adam

William & Mary Environmental Law and Policy Review

For decades, common law has been the pathway to remediation for environmental tragedies. Victims of traditional environmental harms can pursue justice through legal challenges like nuisance, negligence, and violations of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). However, climate change–induced natural disasters have led to the normalization of the “Act of God” exception; a policy provision commonly used in insurance law that excludes coverage for damage caused by unforeseeable natural disasters. Even so, real cities suffer the consequences of the real harm, whether insurance accepts it or not; so, who bears the burden of funding the recovery?

Maryland, …

Look What You Made Me Do, Russell M. Gold

Washington and Lee Law Review

We have understood for centuries that crime is both the product of social forces and individual choice. We know now that crime is affected by economic deprivation, addiction, trauma, and mental health issues. But American criminal legal processes hide this reality by coercing defendants into expressing a profoundly simple narrative: crime is solely individual choice to do wrong. This coerced narrative finds defendants during a plea colloquy standing up in court saying that they are pleading guilty because they are guilty and for no other reason. A defendant who goes off-script to tell the judge that they have been repeatedly …

Sovereign Solutions: Reclaiming Reproductive Autonomy In Oklahoma Indian Country After Dobbs, Morgan Sandler

Dickinson Law Review (2017-Present)

In the United States, Native American women face disproportionately high rates of sexual violence and adverse maternal health outcomes. In addition to these ongoing challenges, they continue to face significant barriers to reproductive healthcare access. Oklahoma’s near-total abortion ban—without exceptions for rape or incest—exacerbates these negative trends, particularly for Native women and the Two-Spirit community. Following the Supreme Court’s decision in McGirt v. Oklahoma, approximately 42 percent of Oklahoma’s land area is recognized as Indian Country. This Comment explores how Oklahoma’s abortion ban disproportionately impacts Native women due to systemic inequities stemming from the federal government’s long history of …

Manufactured Monstrosity: Analyzing And Challenging The Narrative Of Lgbtq+ Terrorism, Samantha Salter

Colorado Law Student Scholars

No abstract provided.

Pursuing Restorative Justice For The Legacy Of Federal Indian Boarding Schools, Jilly Horowitz

Cardozo Journal of Conflict Resolution

This Note examines the United States’ federal boarding school policy, designed to eliminate Native populations, and the federal government’s efforts from June 2021 to December 2024 to acknowledge and address its harms. For 150 years, Native children were subjected to this brutal policy and were removed from their communities and placed in boarding schools. These schools were focused less on providing education and opportunity for Native students, and instead were tools to carry out a concentrated federal policy of cultural assimilation and forcible removal from Native lands. The federal government implemented this policy throughout the country, operating or funding 451 …

Localizing Public Order, Brenner M. Fissell

Faculty Publications

Public order offenses—public intoxication, sleeping outside, etc.—seem trivial, but they have enormous consequences for marginalized populations. These are the offenses that justify coercive police interactions, as well as entry into the procedural morass of the criminal legal system. Accordingly, these offenses have received extensive scholarly attention, with decades of research addressing their vagueness and their impact on urban communities of color. But no work has been done to survey how much of this conduct is criminalized and at what jurisdictional level—city or state.

This Article picks up that task, undertaking a comprehensive analysis of the criminal codes of the fifty …

Localizing Public Order, Brenner M. Fissell

Vanderbilt Law Review

Public order offenses—public intoxication, sleeping outside, etc.—seem trivial, but they have enormous consequences for marginalized populations. These are the offenses that justify coercive police interactions, as well as entry into the procedural morass of the criminal legal system. Accordingly, these offenses have received extensive scholarly attention, with decades of research addressing their vagueness and their impact on urban communities of color. But no work has been done to survey how much of this conduct is criminalized and at what jurisdictional level—city or state. This Article picks up that task, undertaking a comprehensive analysis of the criminal codes of the fifty …

Security And Terrorism Vs Free Expression: Analytical Study On The European Court Of Human Rights, Mariam Adel Massoud

Theses and Dissertations

The 11 of September attacks provide a paradigm shift when it comes to protection of national security. It results in a trending vision that prioritized security over national security, which makes it essential to think about balancing national security with free expression as a pillar of democratization. This study focusses on how the balance between freedom of expression and national security interests is achieved. It studies the legal approached of the European court of human rights and its legal assessment to strike this balance. The findings of this analytical study asserts that in order for the ECtHR to achieve this …

Dual-Purpose Communications And The Modern Attorney's Need For Circuit Court Uniformity, Kipp Garrett

St. John's Law Review

(Excerpt)

In January 2023, the Supreme Court of the United States heard oral arguments in In re Grand Jury regarding the proper and applicable test to determine whether attorney-client privilege can be invoked in dual-purpose communications between a business and its legal counsel. Attorneys across the country were hoping the Court would provide an answer, ending the three-way circuit split concerning the appropriate test. Unfortunately, the Court ultimately dismissed certiorari as “improvidently granted” without an explanation. As a result, there are three major tests that federal courts use to decide whether communications between businesses and their legal counsel are protected: …

Cruel, As Usual: Application Of The Eighth Amendment To The Use Of Juvenile Criminal Records In Higher Education Admissions, Rabab Alajmi

St. John's Law Review

(Excerpt)

This Note addresses the systemic barrier to societal reintegration faced by juvenile offenders applying to enroll in higher education. Specifically, this Note will examine whether, in light of the Fifth Circuit’s recent Hopkins v. Hosemann decision, Eighth Amendment protections against cruel and unusual punishments should be extended to college applicants with juvenile criminal records who have completed their sentences. This Note argues that the Eighth Amendment reasoning in the Hopkins decision should be applied to higher education institutions who consider an applicant’s juvenile criminal record where the applicant has already completed their sentence. While the Hopkins decision concerned “the …

การกำหนดบทลงโทษทางปกครองและทางอาญาร่วมกันในกรณีความประมาทเลินเล่อของ ภาระผูกพันหลังการทำเหมืองขององค์กร: กรณีศึกษาเปรียบเทียบกฎระเบียบการทำเหมืองแร่ของประเทศอินโดนีเซีย ไทย และแอฟริกาใต้ (A Combined Imposition Of Administrative And Criminal Sanctions For Negligence Of Corporate Post-Mining Obligations: A Comparative Study Of Indonesian, Thailand, And South African Mining Regulations), Fachrian Rizki

Chulalongkorn University Law Journal

วิธีการทางกฎหมายอันเหมาะสมและบทบัญญัติของกฎหมายที่เพียงพอต่อการลงโทษนิติบุคลคลซึ่งละเลยหน้าที่อันต้องกระทำการหลังการขุดเหมืองแร่นั้นถือเป็นประเด็นในทางกฎหมายที่หลายประเทศทั่วโลกไม่ได้ให้ความสนใจเท่าไรนัก นอกจากการละเว้นหน้าที่ดังกล่าวโดยประมาทจะส่งผลร้ายทั้งทางตรงและทางอ้อมต่อสิ่งแวดล้อมและชุมชน บริเวณรอบพื้นที่แล้ว การกระทำดังกล่าวยังส่งผลเสียต่อตัวนิติบุคคลด้วย ในอินโดนีเซียมีผู้เห็นว่าการบังคับใช้มาตรการบังคับทางปกครองเพียงอย่างเดียวก็สามารถป้องปรามการกระทำดังกล่าวได้อย่างเพียงพอ แต่อย่างไรก็ตาม เมื่อได้ศึกษาเปรียบเทียบกฎหมายของอินโดนีเซียกับประเทศไทยและแอฟริกาใต้แล้ว พบว่ามีการใช้มาตรการทางอาญาควบคู่ไปกับมาตรการบังคับทางปกครอง ดังนั้น กรณีดังกล่าวจึงนำมาสู่ปัญหาของงานวิจัยฉบับนี้ว่า การบังคับใช้มาตรการทางอาญาควบคู่ไปกับมาตรการบังคับทางปกครองต่อความผิดฐานละเลยหน้าที่ที่พึงต้องกระทำหลังการขุดเหมืองแร่โดยประมาทจะมีผลสัมฤทธิ์มากกว่าการใช้มาตรการบังคับทางปกครองเพียงอย่างเดียวหรือไม่ และการใช้โทษทางอาญาในความผิดฐานดังกล่าวนั้นขัดต่อหลักความได้สัดส่วนและหลักการกำหนดความผิดในทางอาญาหรือไม่ บทความวิจัยนี้จึงมุ่งศึกษาปัญหาดังกล่าวโดยเน้นการวิเคราะห์หลักเกณฑ์ทางทฤษฎีที่เกี่ยวข้อง และเปรียบเทียบกฎหมายของประเทศไทยและแอฟริกาใต้

Accounting For Fetal Personhood: Confronting The Implications Of Fetal Personhood On Vital Statistics Law, Alix Rogers

San Diego Law Review

In February 2024, in LePage v. Center for Reproductive Medicine, the Alabama Supreme Court held that embryos created through in-vitro fertilization (IVF) were legal persons. The national conversation about this ruling focused on the implications for IVF treatment. The impact of fetal personhood on the realm of vital records law has, to date, gone unnoticed. Vital records laws in the United States mandate the registration and collection of data for legislatively determined vital events. Vital records law influenced by fetal personhood, as well as broader trends to criminalize pregnancy, has profound and troubling implications for individuals experiencing spontaneous abortion …

Rights In The Eyes Of The Beholder: The Lived Hierarchy Of Rights In India's Democracy, Sehar Abdullah, Keerthana Satheesh, Prashant Narang

Socio-Legal Review

This paper examines how citizens in India perceive and prioritise fundamental rights, with particular attention to the six freedoms under Article 19(1) and the property right. While the freedoms of Article 19(1) remain central to democratic citizenship, the Forty-Fourth Constitutional Amendment of 1978 reclassified the right to property as a constitutional right under Article 300A. This shift prompts an important question: Does the diminished constitutional rank of property correspond to its place in popular hierarchies of rights? Our in-depth interviews with 26 respondents, whose livelihoods make them especially sensitive to changes in both categories of rights, reveal that citizens continue …

Two Wrongs Don't Make A Right: The Fourth Circuit Sidesteps Supreme Court Precedent In Upholding An Assault Weapon Ban In Bianchi V. Brown, Gabriella Mudd

Villanova Law Review (1956 - )

No abstract provided.