Digital Commons Network^™

Bostock And The Limits Of Textualism: A Doctrinal Structuralist Approach, Martin Katz

William & Mary Law Review

In Bostock v. Clayton County, the Supreme Court held that Title VII prohibits discrimination based on sexual orientation or gender identity. This result, the majority claimed, was required by the interpretive theory called textualism. But textualist Justices in the dissent vehemently disagreed. This split, and the controversy that has followed it, has had two consequences. First, it added fuel to the ongoing debate about the value of textualism. Second, it opened the door for lower courts to decline to apply Bostock to similar antidiscrimination laws, such as Title IX in education or the Equal Protection Clause.

This Article argues …

Procedural Political Economy, Luke P. Norris

William & Mary Law Review

When the Federal Rules of Civil Procedure came into being in 1938, a broad political economy discourse was driving significant legal and policy reform efforts. Legal scholars, economists, political leaders, and others placed questions of economic power and their relationship to democracy at the center of those reform efforts, honing and developing a political economy tradition that is a forebearer to today’s law-and-political economy (LPE) approach. Both then and today, the relationship of civil procedure to these trends has not been fully mined. This Article tells a vital part of that story, tracing the federal civil procedure system’s political economy …

Ai V. Mqd: Navigating New Regulatory Challenges In The Life Sciences, Hayden W. Smith

William & Mary Law Review

This Note proceeds in four parts. Part I introduces AI as an emerging technology in the life sciences, the FDA’s inherited regulatory regime, and challenges under the MQD [major questions doctrine]. Part II explores how hypervigilant regulation obstructs innovation and exposes agencies to judicial challenges. Part III offers solutions to safely and effectively navigate the major questions landscape within a framework that fosters AI innovation. This Note proposes a solution that conceptually balances growth in the life sciences with the statutory elements required for a safe and effective regulatory scheme.

This abstract has been taken from the author's introduction.

Clarifying Parens Patriae, James G. Dwyer

Faculty Publications

Throughout the Anglo-American legal world, the state claims an authority, termed parens patriae, to exert control over the lives of nonautonomous persons in ways it does not presume to control autonomous persons. Philosophers have given little attention to when and how that authority should be exercised, yet there is disagreement or confusion about this among courts and legal scholars. This article examines how parens patriae differs from other government roles, identifies which conceptions of the parens patriae role are coherent, and then presents a normative case for adopting a conception of the role as that of fiduciary for nonautonomous …

Decolonizing The Museum: Improving Transparency Of Colonial Era Art In Museum Collections, Georgia Slattery

William & Mary Law Review Online

This Note argues that the current standards regarding the display of colonial era artwork must be addressed through a new form of oversight and enforcement. In order to understand why the law and policies surrounding museums’ duties should change, it is important to first understand the existing frameworks that guide the choices museums make today. Part I of this Note provides the relevant background, first taking a brief look at the impact of the Nazis on the art world and addressing some of the leading guidelines and legislation about provenance research and restitution claims for Nazi-looted art. Part I then …

Executive Watch: The Breadth And Depth Of The Trump Administration's Threat To The First Amendment, Timothy Zick

Popular Media

Given the Trump administration’s continued and varied assaults on the First Amendment, it is vital to monitor those attacks and then realize the gravity of the “sweeping and draconian sanctions ” imposed by unconstitutional executive fiat. Vigilance is especially important, as New York Times investigative reporter Michael S. Schmidt has noted, because “Mr. Trump has employed tactics including lawsuits, executive orders, regulations, dismissals from government jobs, withdrawal of security details and public intimidation to take on a wide range of individuals and institutions he views as having unfairly pursued him or sought to block his agenda.”

Mindful of such matters, …

Goldilocks And The Three Frameworks: An Argument For A Hybrid Approach To Regulating Fusion Energy Systems, Mitch Boyer

William & Mary Environmental Law and Policy Review

Part I will explore the beginnings of nuclear power regulation in the United States by outlining the short lifespan of the Atomic Energy Commission (AEC), the NRC’s [Nuclear Regulatory Commission's] predecessor, and why the Agency’s two competing directives of protecting public safety and encouraging industry development eventually led to its dissolution in 1974. The subsequent separation and assignment of these directives to newly created agencies— safety to the Nuclear Regulatory Commission and development to the Energy Research and Development Administration—demonstrates that the NRC’s primary statutory directive is regulating nuclear power safely. Part II will delve into the early days of …

Burying The Icepick: Why And How The United States Should End Its Dispute With Canada Over The Legal Status Of The Northwest Passage, Ryan Weber

William & Mary Law Review Online

This Note argues that the United States should work with Canada to pass an amendment to the United Nations Convention on the Law of the Sea (UNCLOS) that allows Canada to legally claim the Northwest Passage as internal waters. While the United States has long championed freedom of navigation, important U.S. security, environmental, and diplomatic interests weigh in favor of a legal regime that allows Canada to exercise complete control over the Northwest Passage. However, UNCLOS does not currently support Canada’s claim. Thus, the best means of accomplishing this objective is for the United States to work with Canada to …

Real Housewives & Real Crimes: The Implications Of Broadened Privacy Rights On White-Collar Offenses, Shrinithi Venkatesan

William & Mary Business Law Review

Reality television stars turn their fame into fortune, often blurring ethical lines as they exploit their platforms for personal gain. These personalities engage in fraud, tax evasion, and embezzlement, all while maintaining a prominent presence on-screen. Specifically, stars on The Real Housewives franchise realize tremendous successes from their stints on the famous television show by capitalizing on their exposure through social media. With their newfound wealth and fame, many of these stars commit white-collar crimes under their viewers’ watchful eyes. This Note examines three prevailing examples of reality television stars who committed various white-collar crimes. Interestingly, networks tolerate criminal behavior …

The National Security Of Inbound & Outbound Investment: Reforming Cfius And Foci, S. Connor Cheadle

William & Mary Business Law Review

This Note examines the evolution and contemporary significance of regulatory frameworks guiding the involvement of private corporations in the U.S. national security regime and the regime’s regulation of inbound and outbound investments as they pertain to national security interests. This Note focuses primarily on the Committee on Foreign Investment in the United States (CFIUS) and Foreign Ownership Control or Influence (FOCI) as regulatory mechanisms. Originating from the Cold War and adapted to post-9/11 security concerns, the scope of national security has widened from the traditional defense and intelligence functions to a more all-encompassing interest, including economic policy and the actions …

Antiracist Antitrust: Antitrust Enforcement As A Civil Right, Synda Mark

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

“Tryna’ make a dollar out of fifteen cents” is more than a genius hip-hop lyric, it is also a metaphor for a real-life economic problem. It is extremely difficult for Black communities to build wealth in America. While many factors contribute to the lack of economic growth, one overlooked area is the ineffective enforcement of the antitrust laws. Even though race and antitrust law have a history that has intersected since the American Civil War, antitrust enforcement has never prioritized improving the welfare of Black communities or other marginalized groups. This must change!

Instead of focusing solely on regulating tech …

The Law Of Heredity -- Whistelo, Whiteness And Whales, Walter J. Walsh

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

This Article reveals the impact of an early New York case upon science and law, raising questions about heredity that spurred evidentiary progress from maternal imagination to visual resemblance, and later from blood groups to DNA paternity testing. In the Jeffersonian republic, a dark-skinned man was charged with reputedly fathering the infant daughter of a mixed-race woman. However, to most witnesses this light-skinned child appeared to be the offspring of a White man. The trial of Commissioners of the Alms-House, vs Alexander Whistelo, a Black man, being a Remarkable Case of Bastardy (1808) became a cause célèbre in both law …

Gender Apartheid Under The Taliban: Key Elements Of An Ideology Designed To Disempower Afghan Women, Ilias Bantekas, Asiya Karimi

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

Despite its frequent use since 2021, the notion of ‘gender apartheid’ is misconceived in terms of existing international law. The type of abhorrent policies pursued by the Taliban regime against women and girls is best conceived as gender-based persecution. Even so, there is no reason why a new and distinct international crime of gender discrimination cannot be established through soft law, domestic law, or treaty-making in order to preserve the plight of women and girls around the world who are subjected to collective discriminatory practices that deny them fundamental human rights. The crime would arise where the discriminatory practices in …

Censorship As A Cure For The Youth Mental Health Crisis In The United States: Utah's Social Media Ban For Minors, Lora M. Singh

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

On October 1, 2024, Utah’s Social Media Regulation Act was scheduled to go into effect, regulating minors’ access and relationship to social media platforms. The Act will, in part, require minor account holders to obtain parent or guardian consent to maintain a social media account, limit the hours minors can be on social media, and prohibit social media platforms from using “addictive” features with minors’ social media accounts. Utah’s Legislature enacted the Social Media Regulation Act in response to the current mental health crisis among Utah minors, which is part of a larger mental health crisis among youth across the …

New Jersey And Guardians: Perfect Together? Suggested Improvements To Guardianship Laws In New Jersey For Adults With Developmental Disabilities, Caroline H. Osborne

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

New Jersey has a large population of adults with developmental disabilities, and many family members of adults with developmental disabilities will seek guardianship. Guardianships and conservatorships have been gaining widespread media attention and awareness. With celebrities coming forward to discuss their experiences and movies being made about their potential for abuse, there has been a new focus on reforming the systems that are in place to improve outcomes for those being placed under guardianships.

Guardians and conservators have been identifying several problems with the current system, including that it is too difficult to secure guardianship over their loved ones, and …

Exporting Equity: Lessons From The Equal Credit Opportunity Act, Shanthi Elizabeth Senthe

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

Credit functions as a fundamental gateway to economic mobility; however, questions arise regarding the legal and societal implications when an individual is denied access to such credit. In theory, fair lending principles dictate that equal access to credit is a legal right. The premise is reasonable but becomes convoluted when consumer credit is clouded by lender bias, resulting in credit discrimination. This Article presents a comparative perspective revealing a jurisdictional difference in legislation affecting equal access to credit between the United States and Canada. Specifically, this Article will focus on the American Equal Credit Opportunity Act (hereinafter ECOA) and …

Plastics, Carbon, Politics, And Experimentation In Environmental Governance, Donald T. Hornstein

William & Mary Environmental Law and Policy Review

In this Article, I discuss new developments on waste reduction involving plastics and continued social experimentation in greenhouse gas (GHG) reduction, especially as framed in two just-concluded, major international negotiations. In doing so, I describe the search for next-generation policies on waste reduction, including, but not limited to, extended producer responsibility (EPR) programs, along with newly announced policies on carbon offset markets as they relate to GHG reduction. In each case, society is on the verge of what movie producers might call “remakes” with EPR and other waste-reducing programs replacing first-generation recycling efforts and newly designed carbon offset markets replacing, …

How Justice Holmes Turned Conspirators Into Partners, Daniel Harris

William & Mary Business Law Review

A fundamental precept of the law of conspiracy is that all members of a conspiracy are partners in crime. This precept is the rationale for many doctrines of conspiracy law, including the controversial judge-made rule that all members of a conspiracy are vicariously guilty of substantive crimes foreseeably committed by one member of the conspiracy even if the other members did not commit the substantive offense, intend the offense, or aid or abet its commission. Why does the law impose partnership status and vicarious guilt on lower-level members of a conspiracy who have no ownership stake in the business and …

Forensic Accounting And Valuation In Delaware Litigation, J.W. Verret

William & Mary Business Law Review

This Article describes the forensic accounting and valuation tools available to Delaware litigators in commercial and corporate litigation as well as family law. Further, it details the licensing process and standards applicable to forensic accountants and shows how the methods utilized in this profession can assist litigators in a variety of contexts. Delaware cases in which courts have accepted or limited the use of expert forensic accountant testimony are explored and general principles for utilizing forensic accounting expertise in Delaware litigation are developed. The uses of forensic accounting in Delaware litigation are demonstrated across appraisal actions, divorce cases, fraud and …

Design Patent Infringement As Unfair Competition, Mark D. Janis

William & Mary Law Review

The rule for determining design patent infringement requires an assessment of substantial similarity through the eyes of an ordinary observer—similarity sufficient to induce the observer to purchase the infringing design supposing it to be the patented design. That test, which originates in the Supreme Court’s 1871 Gorham Manufacturing Co. v. White decision, is an anomaly. It is a patent infringement test framed in language that would be more at home in a trademark infringement or unfair competition case. Yet the Federal Circuit has insisted that design patent infringement is unlike trademark infringement or unfair competition, dismissing any kinship as superficial. …

Tedder'S Not Dead: What Process Is Due To Suspended Elected Officials In Florida?, Richard J. Mullaney

William & Mary Law Review

This Note argues that a proper interpretation of Florida law recognizes property interests in elected office as an integral factor to be considered when assessing what process is due to suspended elected officials. Part I provides an overview of the theoretical underpinnings and modern evolution of procedural due process and property interests, particularly as they relate to public employment and elected office. Part II contrasts historical case law in Florida where property rights were recognized with a curious line of emerging case law that finds no such rights. Part III investigates and refutes the flawed reasoning behind recent opinions that …

Valuing Worker Authenticity, Dallan F. Flake

William & Mary Law Review

Title VII of the Civil Rights Act of 1964 protects workers from discrimination because of their race, color, religion, sex, or national origin. Controversially, courts do not typically extend this protection to individual expression tied to a protected trait, such as a Black employee who wears their hair in dreadlocks or a Latino employee who speaks Spanish on the job. Judicial unwillingness to protect employee self-expression tied to a protected trait causes employees who identify with marginalized groups to suppress their identities to conform with mainstream culture—often at tremendous costs to themselves and the organizations they work for.

This Article …

Tax Collectors For Fair Admissions: Advancing State-Level Tax Incentives To Curb Legacy Admissions, Patrick J. Labella

William & Mary Law Review

Part I of this Note will contextualize the practice of legacy admissions, describe its inherent unfairness and deleterious effects, and explain why—notwithstanding those concerns—some universities still employ the practice in their admissions processes. With that background, Part II of this Note will explain why fiscal incentives are the most appropriate mechanism to disincentivize legacy admissions practices. Part III will then evaluate the flawed federal fiscal proposals to curb legacy admissions, and Part IV will argue that state-level solutions should be preferred to federal ones to respect the values of federalism and promote the most narrowly-crafted, individualized, and state-specific solutions.

This …

Four Ways To Deconstruct Regulation And Undermine Democracy In The States, Glen Staszewski

William & Mary Law Review

A few years before the Supreme Court formally overruled Chevron, anti-administrative activists successfully prohibited judicial deference to reasonable exercises of interpretive discretion by regulatory agencies in a handful of receptive states. State governments’ treatment of this issue is likely to generate even more attention in Loper Bright’s wake. This Article presents novel case studies of four different ways in which state governments have prohibited deference to state agencies by state courts: (1) judicial decisions in Mississippi and Ohio, (2) a constitutional amendment proposed by an appointed commission and adopted pursuant to the initiative process in Florida, (3) statutes …

The Brief (Edition #37, April 2025), William & Mary Law School

The Brief

No abstract provided.

Statement On The Rule Of Law, A. Benjamin Spencer

2020–present: A. Benjamin Spencer

No abstract provided.

Executive Watch: Trump's Weaponization Of Civil Lawsuits, Timothy Zick

Popular Media

This post focuses on civil suits by government figures, mainly by the sitting president. It comes at a time when the legitimacy of the New York Times v. Sullivan case is being challenged, and while efforts to establish a national anti-SLAPP law are being thwarted.

Voter F̶R̶A̶U̶D̶ Mistake, Benjamin Plener Cover

William & Mary Bill of Rights Journal

False narratives challenging electoral integrity often cite ineligible voting as a prime example of so-called widespread voter fraud. This Article demonstrates that ineligible voting often consists of mistakes that are problematically treated like fraud. Some jurisdictions criminalize ineligible voting on a strict liability basis, imposing punishment even when the ineligible voter is unaware of her ineligibility. When jurisdictions impose this strict criminal liability, mistakes are often misunderstood or misrepresented as fraud. This harsh and confused treatment of voter mistake undermines the criminal justice system by severing criminality from culpability, punishing good faith democratic participation, targeting marginalized populations, and amplifying systemic …

Dobbs And The New Doctrine Of Stare Decisis, Russell A. Miller

William & Mary Bill of Rights Journal

Alongside the historic and troubling annulment of the half-century-old Substantive Due Process right to abortion, Dobbs produced another significant outcome. To get its substantive constitutional law result, the Court’s majority also had to reconceive—and significantly weaken—the doctrine of stare decisis. This was necessary because, following Planned Parenthood of Southeastern Pennsylvania v. Casey, the constitutional right to abortion largely depended on respect for precedent as the basis for its survival. To overturn Roe, the Dobbs majority had to blast through the established practice of precedent and articulate a new doctrine of stare decisis. It seems that precedent …

Ai And The Press Clause, Jared Schroeder

William & Mary Bill of Rights Journal

Generative AI took a massive leap forward in late 2022 and early 2023 with the introduction of public access to ChatGPT and Bard. OpenAI, whose ChatGPT tool garnered more than 100 million users in fewer than two months, upgraded to GPT-4 in March 2023. These AI tools, and those who create and use them, almost certainly represent the vanguard of a new generation of publishers, which will join the long queue of communicators who have challenged courts to define the role and place of the Press Clause. AI publishers raise substantial legal questions in fields including defamation, intellectual property, and …