Digital Commons Network^™

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: …

Ten Commandments In The Public Square And Public Schools, Mark David Hall, Andrea Picciotti-Bayer

William & Mary Bill of Rights Journal

The Ten Commandments are of paramount importance to the Jewish and Christian faiths, and they are viewed by many as a source of Western law. In America, they have been (and are) taught in churches and synagogues, and throughout much of this nation’s history they have been taught by parents, tutors, and teachers in private and public schools. They are regularly displayed in courthouses and statehouse grounds, and some states have desired to display them in public schools. Predictably, those who would scrub religion from the public square have argued that Ten Commandment displays on public property violate the First …

Regulating Deception To Protect Democracy: Global Election Misinformation Regulations Analyzed Under U.S. First Amendment Doctrine, Stephanie Hoke

William & Mary Bill of Rights Journal

This Note argues that the marketplace of ideas may not always be a workable theory for the election misinformation that pervades social media platforms. Social media is a unique medium because it does not have the same safeguards as television, radio, and newspapers that are used to filter out false claims and information. Due to the lack of safeguards and the algorithms that promote misinformed posts, social media platforms provide a thriving environment for election misinformation. In addition, the presence of online “echo chambers” and the speed at which misinformation can spread calls for some form of government regulation. In …

The Racialized Retaliatory State: Weaponizing Immigration Law To Criminalize Dissent, Karla Mckanders

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

This Essay examines how systemic racism impacts the ways immigration laws operate to retaliate and criminalize immigrants who dissent. Criminalizing dissent—which recently has become more widespread—is one tool within the immigration system that reinforces America’s racialized caste system. This Essay frames immigration exceptionalism as a continual state that excludes nonconforming bodies and ideologies to instill fear as a means of authoritarian governance. This Essay challenges the history of immigration exceptionalism as an objectively neutral system of governance, arguing that it has historically criminalized racialized migrants to suppress dissent and ideological viewpoints that are not aligned with America’s racialized project. Immigration …

Table Of Contents (V. 34, No. 1)

William & Mary Bill of Rights Journal

No abstract provided.

The Endorsement Test’S Early Years, 1983–1985: Notes From The O’Connor Files, Jay Wexler

William & Mary Bill of Rights Journal

One of Justice Sandra Day O’Connor’s signature contributions to U.S. constitutional law was the endorsement test, a subtle but critically important reformulation of the Court’s then prevailing approach to applying the Establishment Clause that focused on the message sent by government action supporting religion and the potentially harmful effects of that message on religious minorities and the political community. Now that the current Court has discarded the endorsement test, leaving the government freer than ever to support religion in a variety of ways, we should expect to see the harms that Justice O’Connor cared about become increasingly widespread and prevalent. …

Laboratories Of Judicial Ethics: A Comparative Analysis Of Judicial Conduct Commissions In Tennessee, Rhode Island, And North Carolina, And Their Implications For Regulating The U.S. Supreme Court, Johnny Galloway

William & Mary Bill of Rights Journal

It is hardly necessary to recite the recent ethics controversies that have embroiled the Supreme Court. In the last several years, several revelations have rocked the Supreme Court and led members of Congress, President Joe Biden, and the public to question the Court’s ethical standards and impartiality. Whether the Court’s partiality and imprudence are real or perceived, recent developments like these have spurred calls for a binding code of ethics to be either adopted voluntarily by the Court or imposed involuntarily by congressional action. Given the fierce debate over ethics regulation of the U.S. Supreme Court, it is noteworthy that …

The Esg Paradox: Systemic Resistance And The Crisis Of Corporate Governance, Tawia Ansah

William & Mary Environmental Law and Policy Review

This Article examines a recent lawsuit between ExxonMobil Corporation and its shareholders that contested the definition of “ordinary business operations” under Rule 14a-8 of the Securities & Exchange Act of 1934. Through the lens of Niklas Luhmann’s systems theory particularly his concept of “operational closure,” the analysis reveals how corporate resistance to ESG initiatives reflects deeper systemic patterns in late capitalist governance.

ESG frameworks emerged as a challenge to neoliberal corporate governance, promising to address mounting environmental and social concerns. However, the neoliberal model has responded by both absorbing ESG through “greenwashing” and rejecting its more transformative elements—a pattern that …

Justice In Colorado: Achieving Animal Plaintiffhood Through The State's Common Law, Mason Liddell

William & Mary Environmental Law and Policy Review

The common law of Colorado embraces all of the premises necessary to conclude that non-human animals are legal persons who may bring suits on their own behalf. All that is necessary is for a case to bring those premises together. The state endorses a Hohfeldian understanding of rights and duties, meaning the two concepts are necessarily corollaries. So, humans’ existing statutory duty to avoid being cruel to animals entails that those same animals have a right to be free from cruelty under state statute. Then, premised on a long line of legal philosophy and the state’s understanding of “legal personhood,” …

Attribution As Architecture In The Digital Age, Laura A. Heymann

Faculty Publications

As technology changes, one thing remains constant: human creators seem to care about attribution, whether as creators or as audience members. Current U.S. law lacks the means for many creators to effectively address attributional interests, and experience has shown that top-down, imposed technological solutions can fail to gain the necessary buy-in and adoption. The best approach, examples suggest, is for platforms to think of attribution as part of the architecture of their systems, but to take their cues from user-developed, individualized solutions, which will not only be more responsive to user interests but also allow adaptation as interests change and …

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 …

Getting There From Here: Reflecting On Compassionate Migration Policy, Steven W. Bender

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

Having written about Latinx issues for more than three decades, with a focus on immigration policy for at least the last two decades, I see no middle ground in this time of Trump. Those who relish hurt and hate, and those scholars who wrote the kindling for that bonfire, must be basking in the glow of their handiwork. Those of us who I claim are on the right side of history must search through the ashes for hope—the where, when, and how to nurture humanity on scorched ground. Counting myself among those searching for hope, I acknowledge the indulgence offered …

Countering The Criminalization Of Solidarity: An Analysis Of Legal Frameworks Proposed To Protect Humanitarian Aid For Migrants And Asylum Seekers, Katherine E. Smart

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

Thousands of migrant fatalities are reported each year all across the globe, and as staggering as current numbers are, they are likely an undercount. These deaths are a direct result of government policies that funnel migrants into dangerous routes through deserts and seas to deter immigration. Further, when individuals and groups step forward to provide immediate aid to migrants—such as food, water, shelter, first aid, and search and rescue (SAR)—they are often targeted by intimidation, harassment, discipline, and even criminal prosecution. Thus emerges a question: what legal framework can protect the rights of humanitarian aid workers acting in solidarity with …

"America's Paradise": The Enduring Costs Of Imperialism And Colonial Rule--A Case Study Of The U.S. Virgin Islands, Diamond C. Ash

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

As the United States prepared to enter World War I, it secured another strategic territorial holding in the Caribbean. Six days before declaring war on Germany, the United States purchased the Virgin Islands (USVI) from Denmark—not for economic development or the welfare of its people, but as a military asset. St. Thomas, St. Croix, and St. John became a strategic outpost for naval dominance and national security.

Like other unincorporated U.S. territories, the USVI’s governance was shaped by imperial ambitions and reinforced through legal structures that preserved federal dominance. In practice, this created a system of colonial rule in which …

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, …

Pleasure & Pain In Intellectual Property, Andrew Gilden

William & Mary Law Review

Intellectual property produces pleasure. IP laws incentivize investment in popular culture, helping to ensure the viability of entertainment industries and the steady production of our favorite shows, cherished brands, and beloved celebrities. Across IP-heavy industries, creators cite the joy of writing, composing, coding, and experimenting as a motivation for countless hours in the office, studio, or lab. Nonetheless, in a broad range of settings, and across several areas of IP, courts have responded with hostility to personal accounts of pleasure in IP disputes. When a defendant admits to using IP because they are fans of the plaintiff, or because they …

Table Of Contents (V. 67, No. 1)

William & Mary Law Review

No abstract provided.

Relief And Its Costs: The Need For A Congressional Response To The Aftermath Of Harrington V. Purdue Pharma, Emma Skeen

William & Mary Law Review

This Note explores the fallout of the Harrington v. Purdue Pharma decision and the uncertainty it lends to the future of bankruptcy plans and third-party releases. Specifically, it proposes potential congressional solutions that can pave a path forward for parties to seek relief for the harms they have suffered under the actions of corporations and their leaders. Part I provides background information on the use of nonconsensual third-party releases in bankruptcy cases and their controversial nature. Part II analyzes the Supreme Court’s settling of that controversy in Harrington and the bases that it relied on in doing so. Part III …

Domestic Military Deployments After Trump V. United States, Chris Mirasola

William & Mary Law Review

The current legal regime governing domestic military deployments was, largely, born of the Civil War. While conflict was ongoing, Congress enacted what are now a pair of statutes criminalizing military interference with federal elections. And as a coda to Reconstruction, Congress criminalized using the military as a civilian law enforcement force. Over the past 160 years, successive Congresses and Presidents have steadily chipped away at these crucial criminal-law protections. In 2024, the Supreme Court’s decision in Trump v. United States further undermined the limitations that remained.

In Trump, the Supreme Court held that Presidents enjoy, at minimum, a presumption …

Course Schedule 2025-2026, William & Mary Law School

Course Information

No abstract provided.

2025 Supreme Court Preview Digital Notebook, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Brief Of Amici Curiae Intellectual Property Scholars In Support Of Petitioners, Laura A. Heymann, Alfred C. Yen

Briefs

No abstract provided.

Brigham-Kanner Property Rights Journal, Volume 14, William & Mary Law School

Brigham-Kanner Property Rights Journal

Gideon Kanner Remembrance

September 12-13, 2024

Restructuring Property: A Tribute to Lee Fennell

Background Principles, General Law, & Constitutional Property

Roundtable: Unfinished Business & Emerging Issues

Property Rights and Housing In Crisis

Government Trespass: The Fourth Amendment "Open Fields" Doctrine Turns 100

Artificial Intelligence And The Law: A Discussion And Selections From The Collection, Wolf Law Library, William & Mary Law School

Library Book Displays

On display in the Wolf Law Library August 2025 - January 2026.

Securing Americans' Genetic Information: Privacy And National Security Concerns Surrounding 23andme's Bankruptcy Sale. Hearing Before The House Committee On Oversight And Government Reform, United States House Of Representatives, 119th Congress, First Session., Margaret Hu

Congressional Testimony

No abstract provided.

Facial Recognition Ai, Margaret Hu

Faculty Publications

The integration of algorithmic decisionmaking and artificial intelligence (“AI”) into facial recognition technology poses new, unprecedented risks to privacy and individual autonomy rights, particularly in urban settings. The murder of Brian Thompson, CEO of UnitedHealthcare, in New York City on December 4, 2024, provides a timely case study to examine the deployment of facial recognition systems by the New York Police Department and other law enforcement agencies to identify the suspect. New York City deploys some of the most sophisticated surveillance architecture in the nation, put into place following the terrorist attacks of September 11, 2001. This Article explores the …

Executive Watch: Zick On Executive Orders And Official Orthodoxies, Timothy Zick

Popular Media

During his first term as president, Donald Trump signaled that he was not committed to pluralism and expressive liberty when it came to matters like patriotism, public protest, and other forms of dissent. During his second term, Trump has issued multiple executive orders that attempt to impose official orthodoxies or understandings regarding race, gender, patriotism, and other subjects.

As we have seen, these edicts are not merely symbolic. The executive orders call for agency actions and criminal investigations, and place hundreds of millions of dollars in federal funding at risk. The orders have affected what universities teach, which immigrants can …

The First Amendment And The Commencement Provocateur, Duncan Hosie

William & Mary Bill of Rights Journal

This Article explores an untheorized area of First Amendment doctrine: students’ graduation speeches at public or private universities that embrace free speech principles, either by state statute, state constitutional law, or internal policy. Responding to recent graduation speech controversies, it develops a two-tier theory that reconciles a multiplicity of values, including students’ expressive interests, universities’ institutional interests in curating commencement ceremonies and preventing reputational damage and political reprisals, and the interests of captive audiences in avoiding speech they deem offensive or profane. The Article challenges the prevailing view that university students’ graduation speeches implicate individual First Amendment rights. It develops …

But For A Free Press: A Response To Press Freedom Skeptics, Patrick J. Charles, Kevin Francis O'Neill

William & Mary Bill of Rights Journal

This Article is divided into three Parts. Part I will outline the history-in-law case for why the historical record sufficiently supports recognizing distinct constitutional press freedoms. Part II then provides a history-in-law response to some of the most common arguments made by press freedom skeptics as to why distinct constitutional press freedoms should not be recognized by the courts. Lastly, Part III makes the case for why the recognition of distinct constitutional press freedoms should become a jurisprudential reality and provides a roadmap to accomplish this.

This abstract has been taken from the authors' introduction.