Digital Commons Network^™

First Amendment Scholar Timothy Zick Dismantles Trump V. Cnn Lawsuit, Timothy Zick

Popular Media

Former President Donald Trump filed a $475 million defamation lawsuit against CNN arguing the network has maligned him with “fake news” for the purposes of damaging his political future heading into 2024.

The complaint filed Oct. 3 stated, “CNN has sought to use its massive influence – purportedly as a ‘trusted’ news source – to defame the Plaintiff in the minds of its viewers and readers for the purpose of defeating him politically, culminating in CNN claiming credit for ‘[getting] Trump out’ in the 2020 presidential election.”

First Amendment Watch asked First Amendment scholar Timothy Zick to annotate the 29-page …

Currents Of Change In Climate Litigation In Australia, Elizabeth Spencer, Chris Mcgrath

William & Mary Environmental Law and Policy Review

Only a fraction of cases in Australia ever appear in authorized law reports. Hundreds of significant court decisions are overlooked, amid growing concern in several common law jurisdictions that the courts at the highest level may be becoming increasingly aligned with the governments of the day. In tort law, the currents of change can take years and many decisions at various levels before taking hold as established law. In Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment, a single judge of the Federal Court of Australia, Justice Mordecai Bromberg, held that the Federal …

Segmented Innovation In The Legalization Of Mitochondrial Transfer: Lessons From Australia And The United Kingdom, Myrisha S. Lewis

Faculty Publications

The U.S. is often characterized as a leader in innovation—a home of Nobel Prize‐winning scientists, innovators, and abundant research funding. Yet, in the area of assisted reproduction combined with genetic modification or substitution, what I call “reproductive genetic innovation,” that characterization begins to wane. This Article focuses on the regulation of mitochondrial transfer, a subset of reproductive genetic innovation. While human clinical trials related to mitochondrial transfer go forward in the U.K., the clinical use of the technique remains illegal in the U.S. due to a system of subterranean regulation by the U.S. Food and Drug Administration and a now-recurring …

Assessing The Racial Implications Of Ncaa Academic Measures, Timothy Davis

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

In 1983, the NCAA’s adoption of heightened initial eligibility standards for incoming intercollegiate athletes was met with applause and criticism. Proponents lauded the measure as a legitimate means of restoring academic integrity within intercollegiate athletics. Opponents questioned whether seemingly racially neutral eligibility standards had a disproportionately negative impact on African American athletes. It is against this backdrop that the Article examines the racial implications of the NCAA’s past and present academic standards.

These standards consist of initial eligibility rules, progress-toward-degree requirements, the graduation success rate, and academic progress rate, the latter two of which comprise the NCAA’s Academic Performance Program. …

Title Ix's Trans Panic, Deborah L. Brake

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

Sport has long been a site of struggle over competing conceptions of social justice, with no cultural flashpoint more contested than gender. A key site of contention has been the meaning and application of Title IX. With June of 2022 marking the law’s fiftieth anniversary, Title IX has been lauded as the law that launched girls’ and women’s sports from the shadows to their present, more celebrated posture. As these anniversary tributes often emphasize, female athletic participation has soared to new heights in all levels of sports. But Title IX also houses tensions and dilemmas for gender justice that were …

Title Ix In Historical Context: 50 Years Of Progress And Political Gamesmanship, Helen Drew, Marissa Egloff, Josie Middione

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

On the fiftieth anniversary of Title IX, it is important to recognize both its historic nature and how it has evolved in political and social context. This Article will begin by examining the history of women’s athletics pre–Title IX, focusing on what activities women participated in, why, and how societal norms shaped their ability to do so. Next, the Article will examine the status of women’s athletic opportunities as Title IX was first proposed, with an emphasis upon its nexus to the women’s rights movement and the Equal Rights Amendment initiative. The Article will then provide historical background for key …

What's Wrong With The Ncaa's New Transgender Athlete Policy?, Erin Buzuvis

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

In 2022, the NCAA changed its long-standing policy permitting transgender athletes to participate in teams that correspond to their affirmed gender. For twelve years, the NCAA permitted transgender women to participate in women’s sports events under NCAA control, so long as they first underwent a year of androgen suppression. Starting in 2020, however, a political movement to ban transgender women and girls from competing in women’s sport, galvanized by backlash against a single collegiate swimmer, has challenged NCAA’s inclusive approach. Rather than demonstrate leadership and support for rights of transgender women to compete, the NCAA revised its policy to one …

Shaky Science: Shaken Baby Syndrome And Its Disproportionate Impact On False Convictions Of Women Of Color, Shae A. Woodburn

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

Shaken Baby Syndrome (SBS) is a controversial diagnosis and an even more controversial basis for conviction. The syndrome is questioned by scientists and doctors who have yet to come to a consensus on its diagnosis. Courts have permitted SBS evidence to be admitted in criminal trials, and many people have been convicted solely on the basis of this controversial diagnosis. This Note seeks to analyze the history of SBS, the conflicts in the medical and scientific community, standards of evidence that permit its admission in court, and how all of these factors converge in a way that disproportionately impacts women …

Unheralded And Transformative: The Test For Major Questions After West Virginia, Natasha Brunstein, Donald L. R. Goodson

William & Mary Environmental Law and Policy Review

Before the Supreme Court’s landmark decision in West Virginia v. EPA, the “major questions doctrine” was little more than a handful of cases that shared a few overlapping similarities. Although the Court explained in West Virginia that these “extraordinary” cases were all ones in which an agency had asserted “highly consequential power beyond what Congress could reasonably be understood to have granted,” the Court did not apply a consistent analysis across these earlier precedents. In other words, the doctrine lacked a framework to guide lower courts and litigants.

To our knowledge, no article written since West Virginia has explored …

Covid, Climate Change, And Transformative Social Justice: A Critical Legal Research Exploration, Nicholas F. Stump

William & Mary Environmental Law and Policy Review

This Article explores intertwined contemporary crises via the Critical Legal Research framework (“CLR”), as initially developed by the critical legal scholars Richard Delgado and Jean Stefancic. CLR as conceived of in this Article entails a truly radical approach to the legal research and analysis regime. While the traditional research regime—as taught in law schools and utilized in practice—functions to homogenize research outcomes towards hegemonic ends, a critically “reconstructed” approach to legal and broader socio-legal research permits more transformative futures. Specifically, CLR as deployed within such modes as radical cause lawyering can help engender genuine systemic “re-formations” of the ecological political …

Religious Liberty Interest Convergence, Asma T. Uddin

William & Mary Law Review

Americans are deeply polarized on a plethora of issues. One of the most prominent areas of polarization is religious liberty, which in recent years has increasingly pitted conservative, white Christians against a range of marginalized minorities, particularly Muslims. The divide threatens Muslims’ rights and the vitality of religious liberty more broadly. This Article assesses the extent to which self-interest— especially the self-interest of the conservative Justices of the Supreme Court—can help depolarize religious liberty.

Professor Derrick Bell’s theory of “interest convergence” helps connect different self-interests that, in turn, enable issue-specific coalitions strong enough to effect serious cultural and legal change. …

Equal Dignity, Colorblindness, And The Future Of Affirmative Action Beyond Grutter V. Bollinger, Thomas P. Crocker

William & Mary Law Review

In Grutter v. Bollinger the Supreme Court held that diversity was a compelling interest for equal protection purposes that justifies limited consideration of race through affirmative action programs. But there was a catch. The Court predicted that diversity would cease to be a compelling interest within twenty-five years. This Article examines the surprising doctrinal and conceptual implications that would follow if, having both the motive and means, the Court were to overturn Grutter before its predicted 2028 sunset. Exploring internal tensions within existing doctrine, this Article argues that even if the Court were to overturn Grutter, a form of …

Consider Freedom Of Speech: Perspectives On How To Hold Difficult Conversations With Respect, Vivian E. Hamilton, Andrew D. Stelljes

Popular Media

No abstract provided.

Rethinking Introductory Statutory Research Instruction, Leslie A. Street, Frederick Dingledy

Library Staff Publications

No abstract provided.

Charting A Course To Conserve 30% Of Freshwaters By 2030, Sandra B. Zellmer

William & Mary Law Review

One of President Biden’s earliest executive orders established an ambitious national goal to conserve at least 30 percent of U.S. lands, waters, and oceans by 2030. The Biden administration is not alone; over 100 countries support this goal as a means of combating climate change and slowing the pace of species extinction, both of which are accelerating at a rate that is unprecedented in history.

Despite its vow to pursue a wide-sweeping, all-of-government approach, Biden’s 30 by 30 initiative overlooks a critical component of the conservation goal—it pays virtually no attention to freshwater. Freshwater ecosystems are among the most endangered …

Preempting The States And Protecting The Charities: A Case For Nonprofit-Exempting Federal Action In Consumer Data Privacy, Sarah Fisher

William & Mary Law Review

This Note argues that Congress should use its Commerce Clause power to pass a consumer data privacy measure that (1) preempts state law and (2) explicitly exempts 501(c)(3) organizations from compliance. Such preemptive action with a narrow 501(c)(3) carve-out would avoid the potential harm of exempting too broad a group of nonprofit entities while ensuring charitable organizations’ continued existence, would be more protective of both the individual privacy right and 501(c)(3) existence than merely adjusting the revenue dollar threshold at which entities must comply, and would properly balance the individual right to control personal data with the societal good served …

Ford V. Where Are We?: The Revival Of The Sliding Scale To Govern The Supreme Court's New "Relating To" Personal Jurisdiction, Zois Manaris

William & Mary Law Review

This Note proposes a test to govern “relating to” specific jurisdiction, a variation on a theme to those familiar with the doctrine: a “sliding scale” approach to contacts and relatedness, accompanied by a separate assessment of reasonableness factors the Supreme Court has outlined in previous cases to serve as a check on the sliding scale. Part I of this Note explains the “sliding scale” approach, its unpleasant first interaction with the Court, and its revival by the Ford majority. Part II defines this Note’s proposed test and demonstrates its consistency with Supreme Court precedent. Finally, Part III applies this Note’s …

Table Of Contents (V. 31, No. 1)

William & Mary Bill of Rights Journal

No abstract provided.

Liberalism Triumphant? Ideology And The En Banc Process In The Ninth Circuit Court Of Appeals, Arthur D. Hellman

William & Mary Bill of Rights Journal

More than 40 years ago, President Jimmy Carter, a Democrat, appointed 15 of the then-23 judges of the Ninth Circuit Court of Appeals. Those judges were predominantly liberal, and some were extremely liberal. Ever since then, the Ninth Circuit has been widely regarded as “a reliably liberal appeals court” that predictably issues “rulings favorable to liberal causes.” But some knowledgeable commentators, including Professor (now Dean) Erwin Chemerinsky, have disputed the characterization, calling it a “myth.”

Until now, no one has empirically tested whether the Ninth Circuit is indeed the liberal bastion that it is reputed to be. That is the …

The Right To Train: A Pillar Of The Second Amendment, Joseph G.S. Greenlee

William & Mary Bill of Rights Journal

Since the Supreme Court confirmed that the Second Amendment protects “the individual right to possess and carry weapons” in District of Columbia v. Heller, lower courts have been grappling with whether there is also a right to train with those weapons. Courts have considered whether training is a protected activity, whether it is a “core” right, and whether its protection is limited to gaining the minimum competency needed for self-defense.

[...]

No court yet has explored the legal history of the right to train, nor has any article. This Article presents the first in-depth historical exploration of the right. …

Thinking Outside The Box: Preimplantation Genetic Diagnosis, In Vitro Fertilization, And Disability Screening In The Wake Of Box V. Planned Parenthood, Christian J. Sorensen

William & Mary Bill of Rights Journal

A circuit split has recently emerged regarding the constitutionality of state laws banning trait-selective abortions, i.e., abortions based on fetal characteristics like disability. Much of the dialogue surrounding trait selection has revolved around whether such abortions are eugenic in nature and whether they could be regulated differently than other forms of abortion—under either Roe and Casey or the post- Roe regime ushered in by Dobbs. However, the same concerns underlying this debate over eugenic abortions apply with equal force to preimplantation genetic diagnosis (PGD) coupled with in vitro fertilization. Because PGD seems certain to be the next battlefield in …

Making Hazelwood Age-Appropriate: How Viewpoint Neutrality And Recontextualizing The Age-Appropriate Standard Might Save School-Sponsored Lgbt Speech, Rebecca Girardin

William & Mary Bill of Rights Journal

Younger people are identifying as lesbian, gay, bisexual, or transgender (henceforth “LGBT”) more than any previous generation. Likewise, there has been a proliferation of free-speech litigation involving student speech that discusses LGBT issues. Beyond just LGBT speech in school, there has been a recent resurgence in the discussion around the relationship between parents, students, school administrators, and school boards when it comes to regulating school-sponsored speech.

Besides the growing number of students identifying as LGBT, protecting LGBT speech in school is of particular importance because the manner in which a school deals with LGBT speech directly influences the mental health …

Balancing Liberty And Security: A Proposal For Amplified Procedural Due Process Protections In The U.S. Sanctions Regime, Allison Lofgren

William & Mary Bill of Rights Journal

This Note will concentrate on procedural due process concerns stemming from the imposition of terrorist financing sanctions, and it will primarily discuss designated U.S. persons. This is a narrow focus, but it can be viewed as a microcosm for due process issues present throughout the broader IEEPA [International Emergency Economic Powers Act] regime. Ultimately, this Note will conclude that OFAC [Office of Foreign Assets Control]'s terrorist financing designation process inadequately protects the procedural due process rights of targets, and it will advocate for the implementation of additional procedural protections that balance undeniable constitutional requirements with the critical concern of national …

Ducking The System: Examining The Efficacy Of Bounty Hunting Statutes That Stifle The Free Exercise Of Constitutional Rights, Allie Zunski

William & Mary Bill of Rights Journal

[...] This Note examines the legal hurdles surrounding the novel “citizen deputy” statute—including its structure, the attendant legal doctrines, and its broader implications—using SB 8 as a test case for the analysis. While SB 8’s prohibition is no longer unconstitutional, the divisive history of the abortion debate that gave rise to the structure sheds light on the reasons why states may be motivated to infringe on constitutional rights and whether such efforts can succeed in practice. SB 8 is thus a useful test case to examine the structure and its potential for reuse. For purposes of this analysis, this Note …

Circuit Personalities, Allison Orr Larsen, Neal Devins

Faculty Publications

The U.S. Courts of Appeals do not behave as one; they have developed circuit-specific practices that are passed down from one generation of judges to the next. These different norms and traditions (some written down, others not) exist on a variety of levels: rules governing oral argument and the publishing of opinions, en banc practices, social customs, case discussion norms, law clerk dynamics, and even selfimposed circuit nicknames. In this Article, we describe these varying “circuit personalities” and then argue that they are necessary to the very survival of the federal courts of appeals. Circuit-specific norms and traditions foster collegiality …

Higher Ed Has Faults -- But Don't Ignore Its Utility, A. Benjamin Spencer

Popular Media

No abstract provided.

2022-2023 Supreme Court Preview: Digital Notebook (Cover Page), Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

The Court And Religion, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

2022-2023 Supreme Court Preview: Schedule Of Events, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

2022-2023 Granted Cases, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.