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The Executive Branch: Powers Of The President & Inaugurations, Wolf Law Library, William & Mary Law School

Library Book Displays

On display in the Wolf Law Library January - July 2025.

By Any Other Name: Dei Is Not What You Think It Is, Nicole Porter

Faculty Publications

In this moment, Diversity, Equity, and Inclusion (DEI) programs are hotly debated and very misunderstood. Contrary to popular belief, DEI programs do not drastically change an employer’s hiring practices. They are, to some extent, performative. In this essay, I explain what DEI really is and why a rebranding (or at least a new name) might be in order.

Patent Law: An Open-Access Casebook, Sarah Fackrell, Sarah R. Wasserman Rajec, Andres Sawicki

Faculty Publications

No abstract provided.

Ecosocialism, Degrowth, And Global South Thought: Critical Legal Transformations, Nicholas F. Stump

William & Mary Environmental Law and Policy Review

This Article explores how Critical Legal Research (CLR) can help drive transformations of our ecological political economy towards true system change. CLR entails a critical legal theory–informed approach to legal and broader socio-legal research. After articulating the CLR framework, this Article explores its potential in the context of leading and intertwined bodies of theory for transformative change: ecosocialism, degrowth, and Global South and Indigenous thought. Next, this Article offers concrete avenues to help pursue such emancipatory change—i.e., specifically focusing on the popular conception of an “ecosocialist transition.” Ecosocialist transition strategies include non-reformist reforms, dual power, a radical just transition, and …

The Case Of The Missing Case: How Neglecting Chisom V. Roemer Leaves § 2 Of The Voting Rights Act Analytically At Sea, James F. Blumstein

William & Mary Law Review Online

This article critiques the Supreme Court's decision in Allen v. Milligan for relying solely on Thornburg v. Gingles and overlooking Chisom v. Roemer, a key precedent interpreting § 2 of the Voting Rights Act. Chisom established that vote dilution claims must be tied to unequal access to the political process, not just electoral outcomes. By ignoring this linkage, the Court risks turning § 2 into a vehicle for race-based electoral entitlements. The author argues that reaffirming Chisom is essential to preserving the statute’s process-focused intent and analytical clarity.

This abstract was written using generative artificial intelligence.

The Ugly Rhetoric Of Dobbs, Or, Why Jack Balkin Is History, Andrew Koppelman

William & Mary Bill of Rights Journal

This Essay has three claims. First, I want to emphasize an underappreciated ethical virtue elicited by the practice of rhetoric: it demands that the speaker get out of his own head and focus on his audience and what they care about. History matters because it speaks to us. It tells us who we are and why we are doing what we are doing. The rhetorical deployment of historical narrative in political discourse can help to forge a collective identity in which we all can recognize ourselves, and so make the polity more inclusive. Second, if this aspect of rhetoric is …

Originalism's Selection Problem, Darrell A.H. Miller

William & Mary Bill of Rights Journal

This Essay examines the problem of selection with any originalist theory and what it means for constitutional adjudication. Part I surveys the major branches of originalism, explains how each share a commitment to the pursuit of objective, knowable, falsifiable fact, and then use that fact as a fixed point to constrain discretion. Part II discusses how each of these theories are vulnerable to methodological challenges familiar to all empirical projects. Part III explores the implications of these methodological challenges for originalism in particular and for constitutional doctrine and theory more generally.

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

Law And Equity On Appeal, Aaron-Andrew P. Bruhl

Faculty Publications

Most lawyers know that the Federal Rules of Civil Procedure merged the divergent trial procedures of the common law and of equity, but fewer are familiar with the development of federal appellate procedure. Here too there is a story of the merger of two distinct systems. At common law, a reviewing court examined the record for errors of law after the final trial judgment. In the equity tradition, an appeal was a rehearing of the law and the facts that aimed at achieving justice and did not need to await a final judgment. Unlike the story of federal trial procedure, …

Redressing Judicial Misbehavior: An Integrated Approach To Judicial Immunity, Nancy Amoury Combs

Faculty Publications

Immunities generate intense public interest and controversy. Whether it is the sweeping presidential immunity that former President Trump has claimed or the qualified immunity that rogue police invoke to evade financial responsibility for their brutality, immunities stand as a highly contested aspect of the American legal system. Judicial immunity incites similar controversy. American judges possess absolute immunity from civil suits for their judicial acts, so victims are barred from seeking civil compensation, even against judges who engage in purposeful or malicious misconduct from the bench. For decades scholars have sought to curtail absolute judicial immunity, but they have overlooked a …

Table Of Contents (V. 33, No. 2)

William & Mary Bill of Rights Journal

No abstract provided.

We Are All Cafeteria Originalists Now (And We Always Have Been), Jack M. Balkin

William & Mary Bill of Rights Journal

In Memory and Authority, I argue that Americans, both in politics and in constitutional culture, are "‘cafeteria originalists.’ They pick and choose when to follow the views of the founders, framers, or adopters (as they understand them) and often artfully recharacterize these principles to support contemporary political and legal arguments.” Like customers in a cafeteria who take the chocolate cake and leave the boiled kale, Americans pick the features of the framers they like to support their arguments, and leave other, less savory, features behind.

[...]

My central claim is that cafeteria originalism is not a pathology or a …

The Griffin's Case Phenomenon And The Problem Of Historical Knowledge In Legal Arguments, Rachel A. Shelden

William & Mary Bill of Rights Journal

The sudden relevance of a formerly little-known historic case is surely not new; much of legal history is necessarily about discovery and rediscovery of the past. Still, I think the clarity with which we can outline the development of the Griffin’s Case phenomenon offers an opportunity to think carefully about the role of history in constitutional conversation. What follows, then, is a short exploration of the case’s recent (re)entry into our historical consciousness. Tracing this phenomenon highlights (at least for me) some potential difficulties embedded in the interaction between legal advocacy and what we know about the past.

This abstract …

In Praise Of Ignoring Facts, Stephen E. Sachs

William & Mary Bill of Rights Journal

Treating every use of legal rhetoric as equally probative of American law is fatal to the theoretical project—including to [Jack] Balkin’s own “thin” theory of constitutional law, which stretches itself past the breaking point in the hopes of accommodating the changing winds of social movements. Rather than take advocates’ rhetorical moves for granted, we scholars have the indulgence and time to look for the implicit theories underlying these moves, to air those theories explicitly, to identify what might make them true or false, and to assess how plausible they are on those grounds. Constitutional theories need microfoundations: a theory of …

Learning To Read Like An Eighteenth-Century Lawyer: The Historical Critique Of Originalism Revisited, Saul Cornell

William & Mary Bill of Rights Journal

Historians have been among the fiercest critics of originalism. Among the many virtues of Jack Balkin’s book, Memory and Authority, is the deft way he analyzes and dismantles these efforts to insulate originalism from historical critique. In a short essay, it would be impossible to fully acknowledge the sophistication of Balkin’s analysis. Instead, I would like to build on his impressive achievement by pointing out additional problems with the originalist response to historical critique.

This abstract has been taken from the author's opening paragraph.

Memory, Resistance, And Doubt, Richard Primus

William & Mary Bill of Rights Journal

The Burroughs Court did not identify any enumerated power that warranted the Corrupt Practices Act, I suggest, because the Burroughs Court did not subscribe to the enumeration principle. The Justices did not believe—or at least, did not consistently believe— that every federal law must be grounded in some enumerated power. As I have explained at length elsewhere, the text of the Constitution does not actually prescribe the enumeration principle: it can be read to support that idea, but it need not be. And at various moments in American constitutional history, judges and other people have taken the view that Congress …

Shared Memories And Constitutional Foundations, Sanford Levinson

William & Mary Bill of Rights Journal

It is significant that the first word in the title of Jack Balkin’s new book [Memory and Authority] is “memory.” A repeated theme of the book is that what binds a nation—or a constitutional order—together is shared memories around which diverse individuals can gather together and therefore establish themselves as a community. Balkin refers to an impressive array of sources with regard to the topic of “public memory,” but I want to concentrate on one of them, which is cited but not extensively discussed. That is Ernest Renan’s famous speech, delivered at the Sorbonne in Paris on March …

Invocations Of Memory In State Constitutional Law, Fred O. Smith Jr.

William & Mary Bill of Rights Journal

This Symposium Essay discusses the roles of history and memory within the realm of state constitutional law. Building on Professor Balkin’s observations, I offer two claims. The initial argument, delineated in Part I, is descriptive. While the practice of state constitutional law often mirrors that of federal constitutional interpretation, the use of history in state constitutional interpretation has unique characteristics, both with respect to text and ethos. Regarding textual analysis, understanding the language of a state constitution often involves engaging with a concept referred to by some scholars as “interconstitutionalism.” This phenomenon occurs when a single governmental body has operated …

Reproductive Injustice, Feminist Resistance, And The Uses Of History In Constitutional Interpretation, Serena Mayeri

William & Mary Bill of Rights Journal

Part I examines the erasure of constitutional memory about reproductive injustice and feminist mobilizations and the benefits of recovering these histories. Part II explores how cases involving women’s subordination provide particularly effective illustrations of the anti-democratic, even absurd, results the current supermajority’s approach to history-and-tradition is designed to produce. Part III concludes with a brief discussion of some sites for the expansion of constitutional memory about reproductive control and freedom.

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

Freedom And Families: Reconstruction Republicans And The Question Of Women's Reproductive Autonomy, Kate Masur

William & Mary Bill of Rights Journal

This Essay proceeds in three Parts. In the first, I illuminate how congressional Republicans discussed women, gender, and families in the context of policymaking associated with abolishing slavery. Many Republicans worried that enslaved people’s family relationships had been damaged by the imposition of slavery and sought to impose on freedpeople what they saw as normative family values, including by encouraging heterosexual marriage and by insisting on patriarchal gender roles within families. Second, I show that Republicans were at pains to demonstrate that when they talked about equality, they meant race but not gender. Finally, I reflect on the limits of …

Strolling Down Memory Lane, Touring An Historical Restoration, And The Constitution Of December 11, 1865, Mark A. Graber

William & Mary Bill of Rights Journal

The following pages [compare] a stroll down the Reconstruction section of memory lane with a tour of a historical restoration dedicated to reproducing the Constitution of December 11, 1865. Part I strolls down the Reconstruction section of memory lane by elaborating the conventional legal account of what Republicans were thinking when they sought to improve the Thirteenth Amendment’s Constitution immediately after the ratification of the constitutional ban on slavery was assured. Their most vital and often sole concern, legal opinions from the Slaughter-House Cases to Students for Fair Admissions v. Harvard agree, was to alleviate doubts among anti-slavery advocates about …

Preserving The Future Of Juries And Jury Trials, Paula Hannaford-Agor, Hope Forbush, Miriam Hamilton, Jawwaad Johnson, Morgan Moffett

Faculty Publications

To preserve the future of juries and jury trials, the National Center for State Courts (NCSC) convened a meeting of representatives from a broad array of justice system stakeholders as a project under the Justice for All Reauthorization Act (JFARA). To frame the stakeholder discussions, NCSC employed strategic foresight, a methodological approach designed to explore a range of possible futures of juries and jury trials within the American justice system as a vehicle for identifying critical vulnerabilities within the current jury system and proposing targeted strategies to preserve and strengthen jury trials. Critical vulnerabilities are those areas of weakness that …

Follow The Bloody Brick Road: Bleeding Kansas And The Emancipation Proclamation, Margaret Hu

William & Mary Bill of Rights Journal

To help illuminate Balkin’s project of Memory and Authority, this brief Essay considers a slice of American memory from Kansas’ historical archives and other primary sources, and examines its unique role in the Civil War. Specifically, it excavates the influence of Kansas’ leaders as advisors to President Abraham Lincoln. Prior to and during the Civil War, Lincoln relied upon the guidance of senior leaders from Kansas on matters ranging from guarding the White House, war strategies, the recruitment of former enslaved persons to the war effort, and the issuance of the Emancipation Proclamation as a part of an effective …

The Supreme Court Sack[Ler]S Third-Party Releases In Chapter 11: Should Congress Seize The Cudgel?, Lawrence Ponoroff

William & Mary Law Review Online

On June 27, 2024, the Supreme Court issued its ruling in Harrington v. Purdue Pharma L.P., holding that nonconsensual third-party releases included in a Chapter 11 plan of reorganization, other than one relating to asbestos liability claims, were impermissible under the federal Bankruptcy Code. The releases at issue would have immunized members of the Sackler family, who controlled Purdue Pharma, from liability in connection with the company’s role in the opioid crisis. The Sacklers represent the epitome of the unpopular litigant, so no tears need be shed for them. In a sense, they just received a dose of their …

Personhood, Politics, Assisted Reproduction, And The Law Post-Dobbs, Myrisha S. Lewis

Faculty Publications

With the end of the federal constitutional right to abortion, state legislatures and state courts have become far more important in the sphere of reproductive rights. Before Dobbs, anti-abortion advocates had significant (albeit increasingly porous) ceilings on what they could prohibit in relation to reproductive health care. A significant check on those actions is now gone.

In the wake of Dobbs, societal debates about personhood have increased and expanded in terms of their practical implications. Before Dobbs, anti-abortion advocates admitted that Roe and subsequent cases limited the scope of their arguments, especially in relation to the legality …

A Threshold Test For Fed Activism, John Crawford

William & Mary Business Law Review

Recent years have witnessed robust academic and policy debates about the scope of issues the U.S. central bank, the Federal Reserve (the Fed), should attempt to tackle. Some propose expanding the Fed’s remit to help address societal problems like racial inequality and climate change, either through a broader interpretation of the Fed’s current mandate, or through new legislation explicitly delegating new responsibilities to the Fed. Others argue that the Fed should “stay in its lane,” with a particular focus on ensuring democratic accountability and a tighter fit between what the Fed does and what it is statutorily authorized to do. …

Breaking The Chains: Lessons Learned From Anti-Slave Labor Laws And Their Applicability To Proposed Expansions To The Uflpa, Kaitlin Danielle Chang

William & Mary Business Law Review

With global trade growing every day and more products being imported from foreign countries, responsible sourcing of products is more important now than ever. Irresponsible importation of goods can lead to countries like the United States supporting human rights abuses abroad by allowing goods made with forced labor into their domestic markets. The Uyghur Forced Labor Protection Act (UFLPA) has empowered the United States’ Customs and Border Protection to hinder the flow of goods made with Uyghur forced labor into the United States, but it has not been completely successful in preventing these goods from being sold in the United …

Justice On The High Seas: Nonpecuniary Damages And The Death On The High Seas Act, Casey Rockwell, Chad Marzen

William & Mary Business Law Review

The COVID-19 pandemic has brought forth many discussions on liability issues. The Death on the High Seas Act currently prohibits recovery of “loss of society” or “loss of consortium” nonpecuniary damages. This Article contends that in the wake of the COVID-19 pandemic, with the harsh results of the application of DOHSA in COVID-19 cases, Congress has an opportunity to amend DOHSA. Allowing recovery of nonpecuniary damages in DOHSA cruise line cases, currently advocated for by a bipartisan group of lawmakers, will provide consistency and fairness to DOHSA.

Table Of Contents (V. 66, No. 2)

William & Mary Law Review

No abstract provided.

The Consequences And Constitutionality Of Training Police To Blame Victims, Margareth Etienne, Richard H. Mcadams

William & Mary Law Review

A common technique in American interrogations is “moral minimization,” in which investigators excuse or justify the suspect’s criminal behavior on moral grounds. A surprising type of moral minimization is explicit victim-blaming, which includes blaming the victim by endorsing negative stereotypes on the basis of gender, race, religion, or sexual orientation, what we call victim-blaming-bystereotype. No one has previously considered the policy wisdom or constitutionality of this technique. We explore the unintended consequences. One cost is the secondary victimization of those who suffer from crime, especially when they discover how detectives have disparaged them. The second is the effect on the …

Constitutional Federalism And The Nature Of The Union, Anthony J. Bellia Jr., Bradford R. Clark

William & Mary Law Review

Federalism is an essential feature of the Constitution’s design and structure, but the Constitution does not spell out every respective authority of the federal government and the States in precise detail. This omission has led some observers to embrace broad—if not unlimited—federal power and reject certain longstanding federalism doctrines—such as state sovereign immunity, the anti-commandeering doctrine, and the equal sovereignty of the States. The objection to such doctrines is that the Constitution does not affirmatively grant States these sovereign rights and powers. This charge overlooks long-forgotten background context essential to faithful interpretation of the Constitution. The former British Colonies in …