Digital Commons Network^™

Can Judges Help Ease Mass Incarceration?, Jeffrey Bellin

Faculty Publications

A scholar considers how judges have contributed to historically high incarceration rates -- and how they can help reverse the trend.

Ai-Based Evidence In Criminal Trials?, Sabine Gless, Fredric I. Lederer, Thomas Weigend

Faculty Publications

Smart devices are increasingly the origin of critical criminal case data. The importance of such data, especially data generated when using modern automobiles, is likely to become even more important as increasingly complex methods of machine learning lead to AI-based evidence being autonomously generated by devices. This article reviews the admissibility of such evidence from both American and German perspectives. As a result of this comparative approach, the authors conclude that American evidence law could be improved by borrowing aspects of the expert testimony approaches used in Germany’s “inquisitorial” court system.

Foia-Flooded Elections, Rebecca Green

Faculty Publications

After the 2020 election, the United States has witnessed a crisis in confidence in election outcomes. The crisis has fueled massive public pressure on election offices to release election records via state 'freedom of information act" (FOIA) requests. This deluge of records requests places enormous strain on already overburdened and underfunded state and local election offices. Operating under strict statutory FOIA response deadlines, election officials spend hundreds of hours on records requests to the detriment of election preparedness potentially further exacerbating criticism of their offices. Making matters worse, election officials often lack guidance on which records may and may not …

Mercy For The Masses: A Default Rule For Automatically Triggered Commutations, Adam Gershowitz

Faculty Publications

This Essay considers how governors who are interested in reducing mass imprisonment can provide “mercy for the masses” who are in the middle of the criminal justice punishment spectrum. It draws on the successful mass pardons for misdemeanor marijuana offenses, as well as the aspects of the Obama Clemency Initiative that worked well. The proposals that follow offer four variations on a default rule for automatic, but modest, mass commutations.

[...]

This Essay proceeds as follows. First, Part I explains how the modern clemency power has often been focused on death penalty cases and low-level misdemeanors. Part II then recounts …

Principles Of Prosecutor Lenience, Jeffrey Bellin

Faculty Publications

[T]here are profound questions about the when and why of lenience, and particularly prosecutor lenience. The answers speak to one of the great mysteries of American criminal law: the role of the prosecutor. I have taken on this mystery in recent years and continue the effort here by offering a skeletal framework for prosecutor leniency. The framework proposes three principles of prosecutor lenience. Prosecutor lenience should be (1) non-arbitrary, (2) equal, and (3) abundant.

[...]

This Symposium Essay explores prosecutorial lenience through the lens set out above. Part I defines prosecutorial lenience and proposes three principles to guide its exercise. …

Mothers With Disabilities In The Workplace Post-Pandemic & Post-Dobbs, Nicole Buonocore Porter

Faculty Publications

Between when I wrote Mothers with Disabilities and Fall 2023, two major developments have occurred that justify revisiting this topic. The first is the COVID-19 pandemic, which dramatically changed all aspects of our work lives and home lives. The second is the Supreme Court’s landmark decision in 2022, Dobbs v. Jackson Women’s Health Organization, which overturned a woman’s constitutional right to have an abortion. Both of these developments have unique, sometimes conflicting effects on mothers with disabilities.

Accordingly, this Article explores the workplace effects of the pandemic and the Dobbs decision on mothers with disabilities. Drawing on my prior …

The Broken Token Problem: Why Crypto Classification Remains Elusive, Lev E. Breydo

Faculty Publications

Crypto is at a crossroads. After trillions in value destruction, a cascade of bankruptcies and millions of defrauded believers, many are wondering whether the sector has a future. Regulators, meanwhile, are not taking chances, “carpet bombing” crypto with legal actions. Notwithstanding the stakes, consensus remains elusive regarding first-order questions—including, what is crypto?

Part of the problem, this Article posits, is that we have largely been thinking about crypto incorrectly. Rather than a simple, uniform asset, crypto represents a highly heterogenous ten-thousand-instrument universe. One size cannot possibly fit all.

This Article introduces a novel unifying taxonomy for the sector based …

Speech Regulation And Tobacco Harm Reduction, Jonathan H. Adler, Jacob James Rich

Faculty Publications

Part I of this essay describes what is currently understood about the relative health risks of ENDS [electronic nicotine delivery systems] and other vaping products, particularly as compared to combustible cigarettes.

Part II of this essay describes the current regulatory regime governing tobacco products and how this regime has been applied to ENDS and other vaping products.

Part III of this essay explains how the FDA’s regulatory regime hampers the ability of ENDS manufacturers to inform consumers about the relative risks of their products and the potential use of ENDS as smoking cessation aids.

Part IV explains why this regulation …

The Delegation Doctrine, Jonathan H. Adler

Faculty Publications

Despite the focus on the Court’s recent major questions cases, signs of an emergent delegation doctrine can also be found elsewhere. Most significantly, seeds of a delegation doctrine have been planted within the Court’s Chevron jurisprudence. The Court’s increased reluctance to grant Chevron deference to administrative agencies--and its insistence that courts first conclude that interpretive authority has been delegated before deferring to any agency interpretation—rests on the same core premise as the Court’s recent major questions doctrine decisions. It also suggests that the “new” major questions doctrine is not as new as it might seem, but rather a logical outgrowth …

Standing Without Injury, Jonathan Adler

Faculty Publications

This Article seeks to assess Judge Newsom’s proposed injury-less approach to standing in federal court. Part I of this Article provides a brief overview of current standing doctrine, the requirements of standing consolidated in Lujan, and how these requirements have been interpreted and applied by the Supreme Court. Part II describes Judge Newsom’s critique of contemporary standing doctrine and outlines the two primary components of his proposed alternative: 1) elimination of the standing requirement in favor of a simple cause-of-action requirement and 2) recognition of an external constraint on standing derived from Article II, rather than Article III.

Part …

The Private Litigation Impact Of New York's Green Amendment, Evan Bianchi, Sean Di Luccio, Martin Lockman, Vincent Nolette

Faculty Publications

The increasing urgency of climate change, combined with federal environmental inaction under the Trump Administration, inspired a wave of environmental action at the state and local level. Building on the environmental movement of the 1970s, activists have pushed to amend more than a dozen state constitutions to include “green amendments”—self-executing individual rights to a clean environment. In 2022, New York activists succeeded, and New York’s Green Amendment (the NYGA) now provides that “Each person shall have a right to clean air and water, and a healthful environment.”

However, the power of the NYGA and similar green amendments turns on judicial …

Pricing, Decarbonization, And Green New Deals, David M. Driesen, Michael A. Mehling

William & Mary Environmental Law and Policy Review

This Article evaluates an emerging literature claiming that carbon pricing (emissions trading or carbon taxes) has not performed very well and therefore cannot be the basis for the sort of transformative change now required to address the climate crisis. This is an important claim, as carbon pricing has been viewed as being at the heart of global efforts to address one of our most important contemporary problems.

We provide theoretical and empirical support for these critics’ claim that carbon pricing by itself cannot catalyze the technological transformation now required, and that other approaches have done and will likely do better. …

Becoming A Doctrine, Allison Orr Larsen

Faculty Publications

On the last day of the 2021–22 Term, the Supreme Court handed down a decision on “the major questions doctrine” and granted certiorari to hear a case presenting “the independent state legislature doctrine”—neither of which had been called “doctrines” there before. This raises a fundamental and underexplored question: how does a doctrine become a doctrine? Law students know the difference between doctrinal classes and seminars, but how does an idea bantered about in a seminar (say, about agencies deciding major questions) become a “doctrine” complete with judicial tests, steps, and exceptions? Taking an analogy to medicine, when does …

Intellectual Property And The Myth Of Nonrivalry, James Y. Stern

Faculty Publications

The concept of rivalry is central to modern accounts of property. When one person’s use of a resource is incompatible with another’s, a system of rights to determine its use may be necessary. It is commonly asserted, however, that informational goods like inventions and expressive works are nonrivalrous and that intellectual property rights must therefore be subject to special limitation, if they should even exist at all.

This Article examines the idea of rivalry more closely and makes a series of claims about the analysis of rivalrousness for purposes of such arguments. Within that framework, it argues that rivalry should …

Symposium Introduction: The Effect Of Dobbs On Work Law, Nicole Buonocore Porter

Faculty Publications

In March 2023, Chicago-Kent College of Law hosted a symposium—The Effect of Dobbs on Work Law—to explore the ways that the Dobbs abortion decision has affected the workplace. The presenters at that live symposium wrote articles that are being published in this journal. As the host of the symposium and the Editor of this Journal, I use this Article to introduce the articles in this symposium issue and to provide my reflections on them. I also briefly address the topic that I presented at the symposium—the effect of Dobbs on people with disabilities.

The Constitutional Court Of Kosovo In Comparative Perspective, Christie S. Warren

Faculty Publications

...presented at the Solemn Ceremony of the 14th Judicial Year of the Constitutional Court, held on 23 October 2023 in Prishtina and on the occasion of the International Conference “Contribution of Constitutional Courts in the protection and strengthening of the fundamental values of democracy, the rule of law and fundamental human rights and freedoms”, organized on 24 October 2023 in Prishtina.

Public Protest And Government Immunities, Timothy Zick

Faculty Publications

This Article presents the findings of a quantitative and qualitative study of the application of qualified immunity and other governmental immunities in the context of public protest. Relying on three unique datasets of federal court decisions examining First Amendment and Fourth Amendment claims, the Article concludes that public protester plaintiffs face an array of obstacles when suing state, local, and federal officials for constitutional injuries. Quantitative findings show that protesters’ claims are frequently dismissed under qualified immunity doctrines and that plaintiffs also face strict limits on municipal liability, new restrictions on First Amendment retaliation claims, and the possible extinction of …

Naming, Expressive Interests, And The Law: The Implications Of Governmental Form Design, Laura A. Heymann

Faculty Publications

The design of governmental forms can result in restrictions on the ability of individuals to submit truthful personal naming choices, such as when a form field has character limitations or does not accept diacritics. In some instances, form design operationalizes government policy. But in other instances, form design can itself create law by limiting the ability to submit accurate names on the front end. Awareness of the legal implications of form design is critically important. A more inclusive and accurate approach toward the legal documentation of naming choices means that forms should adapt to people, not the other way around.

Tarnished Gold: The Endangered Species Act At 50, Jonathan H. Adler

Faculty Publications

This Article aims to take stock of the [Endangered Species Act] ESA’s success and failures during its first fifty years, particularly with regard to the conservation of species habitat on private land. While the ESA authorizes powerful regulatory tools for species conservation, there are serious questions as to whether such tools are the most effective means of conserving species and the habitats on which they rely. Given that most species rely upon private land for their survival, the ESA’s ability to foster private land conservation will affect the law’s overall success.

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

Coasting North: The Problem With The Jones Act For The Offshore Wind Industry And A Remedy From Canada, Sarah Macleod Nagle

William & Mary Environmental Law and Policy Review

This Note is organized into three parts to examine how the Jones Act hampers the U.S. wind energy industry’s construction of offshore wind farms by requiring that only U.S. vessels transport materials from U.S. ports to the wind farms. The Note proposes a license modeled on Canada’s Coasting Trade Act (“CTA”) to allow non-U.S.-flagged vessels to participate in wind turbine construction. Part I will address the development of cabotage law in the United States, the creation of the Jones Act, and its impact on offshore wind. Part II surveys Canada’s cabotage laws, which culminated in the passage of the CTA …

Race To The Bottom: How Equitable Apportionment Could Encourage Overdrafting Of Aquifers, Emily Wells

William & Mary Environmental Law and Policy Review

Groundwater is a vital source of water for drinking and irrigation in the United States. However, it was unclear what legal doctrine would apply to apporting interstate groundwater between the states. This changed in Mississippi v. Tennessee, when the Supreme Court ruled that equitable apportionment would the controlling doctrine. The Court though declined to clarify how the doctrine would be applied to groundwater. This Note discusses how equitable apportionment has historically been applied to rivers and hypothesizes how the Court may apply equitable apportionment to groundwater.

Dark "Oro Y Plata" In Montana: The Green Amendment's Defense Of Campaign Finance Transparency, Lucas Della Ventura

William & Mary Environmental Law and Policy Review

In the post–Citizens United dark money age, state disclosure regulations are the last line of defense for citizens to learn who is behind unlimited independent expenditures and electioneering communications flooding their states. Underpinning the ability of state governments to promulgate such transparency measures are the informational benefits provided to the public. However, the Supreme Court’s decision in Americans for Prosperity Foundation v. Bonta to invalidate a California disclosure regulation on dark money groups, marks disclosure regulations—the Court’s repeated fallback when striking down more robust campaign finance regulations—with a bull’s-eye. In the face of repeated legal challenges to disclosure regulations, …

Fair Cross Section And Tribal Jury Composition: Vawa 2022 Tribal Criminal Jurisdiction Series, Paula Hannaford-Agor, Steve Aycock

Faculty Publications

The Violence Against Women Reauthorization Act of 2013 (VAWA 2013) amended the Indian Civil Rights Act (ICRA) to ensure that non-Indian criminal defendants in Tribal courts have the right to a trial by an impartial jury that is drawn from sources that 1) “reflect a fair cross section of the community” and 2) “do not systematically exclude any distinctive group in the community, including non-Indians.” This requirement applies when a non-Indian who is criminally prosecuted in Tribal court faces possible imprisonment.

The implementation of these jury provisions has been a topic of discussion among the Inter-Tribal Working Group on Special …

Reimagining The Inclusive Jury, Anna Offit

Faculty Publications

At the height of the COVID-19 pandemic, everyday life for many Americans was upended. And yet, the jury trial remained viable — even vital. Faced with an era-defining public health disaster, courts innovated, embracing novel technologies and techniques to reimagine where and how justice might be made. But why did it take a pandemic to spur this kind of institutional creativity? Prior to the outbreak of COVID-19, people who were otherwise eligible to participate as jurors were routinely — and uncontroversially — struck or exempted from service due to limited mobility, vision and hearing loss, and caregiving responsibilities. Recent experience …

2024-2025 Schaefer Workshop Speakers, William & Mary Law School

Elmer J. Schaefer Workshop Series

No abstract provided.

2024 Annual Report, Wolf Law Library, William & Mary Law School

Library Annual Report

No abstract provided.

Aggressor Status And Its Impact On International Criminal Law Case Selection, Nancy Amoury Combs

Faculty Publications

The laws of war apply equally to all parties to a conflict; thus, a party that violates international law by launching a war is granted the same international humanitarian law rights as a party that is required to defend against the illegal war. This doctrine—known as the equal application doctrine—has been sharply critiqued, particularly by philosophers, who claim the doctrine to be morally indefensible. Lawyers and legal academics, by contrast, defend the equal application doctrine because they reasonably fear that applying different rules to different warring parties will sharply reduce states’ willingness to comply with the international humanitarian law system …

Regulation By (Bad) Proxy: How Selective Application Of Transaction Cost Economics Tainted The Ftc's Proposed Ban Of Employee Noncompete Agreements, Alan J. Meese

Faculty Publications

Agencies have imperfect information about conduct they regulate. This problem is particularly acute when identical conduct has differing effects in various markets. Determining the economy-wide impact of such conduct can be difficult or impossible.

The FTC faces such a challenge. The Commission has announced a rule banning the nation’s 30 million employee noncompete agreements (“NCAs”) as unfair methods of competition under Section 5 of the FTC Act. The Commission determined that NCAs likely reduce aggregate wages, helping to establish a presumptive violation. The Commission also found that nearly all NCAs are both procedurally coercive—because employers use overwhelming bargaining power to …

Appealing Magna Carta, Thomas J. Mcsweeney

Faculty Publications

In 1999, Professor Richard Helmholz published Magna Carta and the Ius Commune, in which he argued that some of the ideas and language found in Magna Carta provide evidence that the early common law was engaging with the ius commune, the ancestor of modern civil law traditions. This Essay examines one piece of evidence highlighted by Helmholz and more recently by Professor Charles Donahue: that the Articles of the Barons, a preparatory document for Magna Carta, uses a phrase borrowed from canon law, appellatione remota (without possibility of appeal). Helmholz and Donahue pointed to its use as evidence that …

Table Of Contents (V. 32, No. 2)

William & Mary Bill of Rights Journal

No abstract provided.