Digital Commons Network^™

The Case For Local Data Sharing Ordinances, Beatriz Botero Arcila

William & Mary Bill of Rights Journal

Cities in the United States have started to enact data sharing rules and programs to access some of the data that technology companies operating under their jurisdiction— like short-term rental or ride hailing companies—collect. This information allows cities to adapt to the challenges and benefits of the digital information economy. It allows them to understand what the impact of these technology companies is on congestion, the housing market, the local job market, and even the use of public spaces. It also empowers cities to act accordingly by, for example, setting vehicle caps or mandating a tailored minimum pay for gig …

The First Amendment Weaponized: When Guns Become Public Discourse, Danny Li

William & Mary Bill of Rights Journal

This Article discusses First Amendment challenges asserted against gun control measures—inside and outside our courts. It explains at length why existing doctrinal approaches to resolving these challenges fail, providing an alternative account of why the First Amendment should not be construed liberally to protect the open carry of firearms. As guns in public spaces and protests become commonplace, we can expect not only continual First Amendment challenges to gun control measures, but also the growing prevalence of First Amendment claims asserted in the public by advocates and gun owners to justify open carry—and the forging of new constitutional meanings and …

Originalism's Implementation Problem, Michael L. Smith, Alexander S. Hiland

William & Mary Bill of Rights Journal

Despite the vast body of theoretical work produced by originalist scholars, this literature fails to address how practicing judges and attorneys should apply originalist theories. All too often, academic originalists appear to write for an audience of other originalist scholars. This results in lengthy, technical, and heavily theoretical discussions. The question of how courts and judges are to apply these increasingly technical and theoretical originalist methods is left by the wayside. All too often, judges and attorneys cherry-pick from this body of scholarship to create a veneer of academic legitimacy for their own goal-oriented arguments.

We do not seek to …

Limited Protection: The Impact Of Illegal Entry On Due Process Rights In Expedited Removal Proceedings, Sun Shen

William & Mary Bill of Rights Journal

[...] This Note argues that illegal entry often limits the scope of asylum seekers’ due process rights in court and negatively impacts the asylum process in a way that runs afoul with the spirit of due process and fairness. Asylum eligibility should not hinge on whether entry is legal, but whether applicants are able to meet the evidentiary burden. Conditioning asylum seekers’ procedural due process rights on the legality of entry creates arbitrary asylum results and carries high risks of sending back asylum seekers to danger, simply because they were not able to obtain valid travel documents from the governments …

Maybe We Don't Need To Find Waldo After All: Why Preventing Voter Fraud Is Not A Compelling Interest, Brandon T. Goldstein

William & Mary Bill of Rights Journal

This Note takes the position, counter to established jurisprudence, that the prevention of voter fraud is not a compelling state interest that can independently justify restrictions on the right to vote. It will seek to do so through two mechanisms. First, it will argue that the right to vote is unjustifiably treated differently than other rights by courts, using a comparison to the Second Amendment right to bear arms. Second, it will argue that current jurisprudence holding the prevention of voter fraud to be a compelling interest misunderstands the inherent means-ends distinction in voting rights standards. The prevention of voter …

The Price Of Democracy: Evaluating The Excessing Fines Clause In Light Of Florida Felon Disenfranchisement, Raven Peters

William & Mary Bill of Rights Journal

This Note aims to show how the current test of proportionality is insufficient in combatting excessive fines, especially considering the racist and discriminatory practices of felon disenfranchisement. In Part I, this Note evaluates the background of the Eighth Amendment’s Excessive Fines Clause and its recent incorporation against the states. Part II will provide insight into the history of felon disenfranchisement in Florida and the fight for voter restoration through the passage of Florida Amendment 4. This section will then tell of the subsequent implementation of Florida Statutes section 98.0751 requiring ex-felons to pay all fines and fees associated with their …

The Brief (Edition #17, April 2022), William & Mary Law School

The Brief

No abstract provided.

A Title Vii Dead End? Machine Learning And Employee Monitoring, Kayla Burris

William & Mary Law Review Online

This Note will argue that Title VII, as courts currently apply the law, does not adequately protect employees from algorithmic discrimination when companies use machine learning to monitor their employees' computers. Part I will provide an introduction to how employee monitoring tools work, how employers are using machine learning in their monitoring programs, and how these programs can discriminate. Because scholars have already done significant work in this area, this Note will not try to replicate this research but will provide an overview of how this discrimination can occur. Parts II and III will then analyze how an employee might …

I Have To Tell Them What? The New Corporate Transparency Act And Forming Business Entities In Virginia, James J. Wheaton, Gustavo De La Cruz Reynozo

Faculty Publications

The details and requirements of business entity formation traditionally have been solely the province of state law. Most states, such as Virginia, maintain corporate annual report filing requirements that involve the public disclosure of corporate officers and directors. However, these requirements focus on active managers of the entities, not information about beneficial ownership. The recently enacted Corporate Transparency Act ("CTA") will fundamentally change entity disclosure on the national level.

The CTA was part of the fiscal year 2021 National Defense Authorization Act and seeks to aid national security and crime fighting through a national registry of beneficial owners of business …

Making The Best From A Mess: Mental Health, Misconduct, And The "Insanity Defense" In The Va Disability Compensation System, Caleb R. Stone

Faculty Publications

The disability compensation system implemented by the Department of Veterans Affairs ("VA") is highly technical and complex. Before veterans reach questions concerning entitlement to benefits or the amount of compensation, they must first achieve basic eligibility for VA benefits. That involves receiving a discharge that is "honorable" for VA purposes. For some former servicemembers seeking benefits, using the VA's "insanity defense" to excuse misconduct leading to a less-than-honorable discharge may be the best avenue for obtaining compensation. The VA insanity provision contemplated in 38 U.S.C. s. 5303(b) and defined in 38 C.F.R. s. 3.354 is the only "defense" that allows …

Trust Issues: Using States' Public Trust Doctrines To Advance Environmental Justice Claims, Alicia Muir

William & Mary Environmental Law and Policy Review

The primary purpose of this Note is to evaluate a new method one could use to bring an environmental justice claim. This Note suggests that the solution can be found within the reinvigorated public trust doctrine. Instead of pursuing environmental justice claims on the federal level, plaintiffs could utilize the sleeping giant that is states’ public trust doctrines. Pennsylvania courts, the pioneers of this new path, held that its public trust should be evaluated using private trust law principles. By interpreting state-created public trusts through the lens of private trust concepts, citizens in a number of states are capable of …

Quality Control: Potomac Riverkeeper V. Wheeler & Standards For Qualitative Citizen Water Quality Data In Virginia, Jacqueline Goodrum

William & Mary Environmental Law and Policy Review

This Article explores the issue of quality of citizen data through the lens of Potomac Riverkeeper v. Wheeler, a recent impaired waters listing case concerning the Shenandoah River in Virginia. Part I of this Article provides a brief overview of citizen science data in regulation and policymaking under the CWA. Part II discusses Potomac Riverkeeper v. Wheeler, examining Virginia’s water quality-related data standards and DEQ’s use (and non-use) of citizen water quality-related data and information in that case. Finally, Part III argues that Virginia should establish clear, reasonable, and specific data quality standards for qualitative citizen data so …

The Promise And Perils Of Textualism For Environmental Advocacy, Canaan Suitt

William & Mary Environmental Law and Policy Review

This Note argues that a reliance on textualist arguments to win environmental victories from conservative judges in the new judicial landscape involves a simplistic view of judicial decision-making, according to which a method of constitutional or statutory interpretation is dispositive of a given ruling. Methods of interpretation interact with other factors, including judges’ ideological and institutional commitments, in determining cases. Textualism is a method of constitutional interpretation favored by conservative judges, but it is also part of a broader suite of conservative commitments and attitudes that complicate the role of textualism and may counteract textualism’s perceived benefit for environmental causes. …

Incidental Take Under The Migratory Bird Treaty Act And How To Share The Skies, Erika Bosack

William & Mary Environmental Law and Policy Review

This Note will focus on one piece of legislation that can protect birds from wind turbines: the Migratory Bird Treaty Act of 1918 (“MBTA” or “the Act”). The MBTA makes it illegal to hunt, kill, capture, import, export, sell, buy, pursue, possess, transport, or take a bird on the list of protected species, which covers hundreds of types of birds as well as their nests and eggs. The law forbids these acts in any manner, by any means, and at any time. The text itself does not explicitly state whether intentional and unintentional acts should both carry liability, which has …

Casting Pearls Before Swine: Why The Public's Darling Right To Pollute Should Have Been Overturned In Recent Scova Decision, Thummim Park

William & Mary Environmental Law and Policy Review

This Note calls for the Virginia Supreme Court to recognize that a city’s right to freely pollute the public waterways is no longer valid under the Virginia Constitution, and to recognize that the line of Darling cases granting municipalities the public right to pollute waterways should have been overturned.

Part I will set out the foundation for this Note. It will discuss the background of Johnson v. City of Suffolk, laying the context for this Note’s discussion. Part II will engage in an analysis of the rationale for Darling. It will contextualize and compare it to current understandings …

Encouraging Sustainable Innovation: Is There Room For A Post-Grant Environmental Challenge In American Patent Law?, Samuel Habein

William & Mary Environmental Law and Policy Review

This Note examines potential changes within the American patenting system that might renew the U.S. Patent and Trademark Office’s (“USPTO”) dedication to the promotion of progress through a post-grant environmental challenge to patents. There are many ways to encourage “green” innovation by challenging practices that harm the environment, but the patent system has a unique ability to discourage environmentally harmful innovation by refusing to grant exclusionary rights—rights that many industries require to thrive. However, a post-grant environmental challenge would undoubtedly disrupt the American patent system in severe ways that this Note does not address. Therefore, this Note is not arguing …

Detoxing From Clean Claims: Bridging The Gap Between "Clean" And "Dirty" Beauty, Alecsandra Dragus

William & Mary Business Law Review

The clean beauty industry has gained increasing popularity in the last couple of years. This has spurred the development of many brands and impacted what consumers look for in their products. This Note engages in the existing conversation in the beauty industry pertaining to "clean" products by showing that the lack of interference from the Food and Drug Administration (FDA) and the Federal Trade Commission (FTC) to set definitional criteria for what constitute ''clean" products has resulted in an increase in the commercialization of health-conscious consumer beliefs based on ambiguous and misleading information. These consumers are stuck in a loop …

Allocation Of Property Appreciation: A Statutory Approach To The Judicial Dialectic, Lawrence Ponoroff

William & Mary Business Law Review

Many, perhaps the majority, of Chapter 13 cases end up being converted to Chapter 7. The converted Chapter 7 case is not a new case, it is a continuation of the case that was commenced with the filing of the original Chapter 13 petition. However, there are important structural differences between the two chapters, including over what constitutes property of the estate. This creates some thorny issues surrounding whether property of the estate as generally defined in section 541(a) of the Bankruptcy Code or property of the estate as specifically defined in Chapter 13 controls in determining the scope of …

Rules Of Regularity: An Empirical Quest For Commercial Certainty In Arbitration, Cornelis J.W. Baaij

William & Mary Business Law Review

The U.S. Supreme Court justifies the broad enforceability of arbitration agreements with the notion that arbitration expands parties' autonomy to contract for an efficient alternative to court proceedings. Unfortunately, the current practice of both domestic and cross-border commercial arbitration does not fully live up to these expectations. It is crucial to both autonomy and efficiency theories of contract law that adjudicatory decision-making is predictable so parties can tailor their contracts accordingly. However, commercial arbitration's prevailing culture of confidentiality and lack of stare decisis diminishes commercial certainty. To bring the reality of commercial arbitration closer to the Supreme Court's reasoning, this …

Regulating Dynamic Risk In Changing Market Conditions, Susan Navarro Smelcer, Anne Tucker, Yusen Xia

William & Mary Business Law Review

How successful are the SEC's attempts to regulate dynamic risk in financial markets? Using mutual fund disclosure data from two financial shocks--the Puerto Rican debt crisis and COVID-19--this Article finds evidence that SEC open-ended regulations, like the obligation to disclose changing market conditions, are largely successful in capturing dynamic, future risk. Funds engage in widespread and, often, detailed disclosures for new risks--although these disclosures vary widely in specificity. But not all funds disclose new risks. This creates perverse incentives for funds to opt out of disclosure or downplay threats with boilerplate language when new risks are emerging. This Article recommends …

Private Rights Of Action In Privacy Law, Lauren Henry Scholz

William & Mary Law Review

Many privacy advocates assume that the key to providing individuals with more privacy protection is strengthening the government’s power to directly sanction actors that hurt the privacy interests of citizens. This Article contests the conventional wisdom, arguing that private rights of action are essential for privacy regulation. First, I show how private rights of action make privacy law regimes more effective in general. Private rights of action are the most direct regulatory access point to the private sphere. They leverage private expertise and knowledge, create accountability through discovery, and have expressive value in creating privacy-protective norms. Then to illustrate the …

Substituted Service And The Hague Service Convention, William S. Dodge

William & Mary Law Review

State law plays a surprisingly large role in transnational litigation, and how it defines the applicability of the Hague Service Convention is an important example. In Volkswagenwerk Aktiengesellschaft v. Schlunk, the U.S. Supreme Court held that the Convention does not apply when, under state law, service of process is made within the United States. In Schlunk, Illinois law permitted substituted service on the U.S. subsidiary of a foreign parent company, so the Convention did not apply. This Article looks at substituted service under state law today and when it permits avoidance of the Hague Convention. The Article focuses …

Endorsing After Death, Andrew Gilden

William & Mary Law Review

An endorsement is an act of giving one’s public support to a person, product, service, or cause; accordingly, it might seem impossible for someone to make an endorsement after they have died. Nevertheless, posthumous endorsements have become commonplace in social media marketing and have been increasingly embraced by trademark and unfair competition laws. Entities representing Marilyn Monroe, for example, have successfully brought trademark claims for the unauthorized use of Monroe’s name, have successfully brought false endorsement claims under section 43(a) of the Lanham Act, and regularly have promoted products through the Instagram-verified “@marilynmonroe” page. Marilyn Monroe survives today as a …

Abortion, Sterilization, And The Universe Of Reproductive Rights, Melissa Murray

William & Mary Law Review

In recent years, a new narrative associating reproductive rights with the eugenics movement of the 1920s has taken root. As this narrative maintains, in the 1920s, Margaret Sanger, a pioneer of the modern birth control movement, joined forces with the eugenics movement to market family planning measures to marginalized minority communities.

Although the history undergirding this narrative is incomplete and misleading, the narrative itself has flourished as the debate over the continued vitality of reproductive rights has unfolded in the United States. Indeed, in just the last three years, a member of the United States Supreme Court and a number …

No Child Left Behind Bars: Applying The Principles Of Strict Scrutiny When Sentencing Juveniles Tried As Adults, Max Chu

William & Mary Law Review

The Commonwealth of Virginia was the first in the nation to pass legislation that provides judges with the discretion to veer away from the mandatory minimum sentence and to impose trauma-informed and age-appropriate sentences for juvenile offenders convicted of felonies and tried as adults. Although Virginia’s new law, House Bill 744 (HB 744), is a pioneering step in the right direction, this Note argues that the law may now provide judges with too much discretion. In other words, HB 744 alone, without more guidance, does not go far enough to protect the rights of juvenile offenders.

Therefore, this Note proposes …

Fourth Amendment Infringement Is Afoot: Revitalizing Particularized Reasonable Suspicion For Terry Stops Based On Vague Or Discrepant Suspect Descriptions, Caroline E. Lewis

William & Mary Law Review

In Terry v. Ohio, the Supreme Court granted law enforcement broad power to perform a limited stop and search of someone when an officer has reasonable suspicion that the person is engaged in criminal activity. The resulting “Terry stop” created a way for police officers to investigate a suspicious person without requiring full probable cause for an arrest. The officer need only have “reasonable suspicion supported by articulable facts” based on the circumstances and the officer’s policing “experience that criminal activity may be afoot.” Reasonable suspicion is—by design—a broad standard, deferential to police officers’ judgment. Law enforcement officers …

Abandoned And Derelict Vessels In The Commonwealth: How To Improve Virginia's Adv Program, Anthony Cusato

Virginia Coastal Policy Center

Vessels abandoned or lost by their owners can get stuck on a shoreline or in a marsh, aimlessly float adrift, or sink in a waterway. As the number of ADVs [abandoned and derelict vessels] increases, efforts to address them similarly intensify. Typically, state government agencies handle most ADVs, and their approaches to ADV control and removal vary widely across jurisdictions. Virginia faces an increasing number of ADVs and can learn from other states to improve its approach. This paper examines the current Virginia ADV program and considers how it can be amended to make it more effective. It then identifies …

A Study Of Tribal Communication Frameworks: Some Approaches To Building Partnerships Between Tribal, State, And Local Governments In Virginia, Karly Newcomb, Abigail Sisti

Virginia Coastal Policy Center

This paper discusses options the Commonwealth could consider when evaluating decision-making processes that affect tribes in Virginia, with the goal of improving communication and collaboration between tribal, state, and local governments; and will highlight key case studies from other states and localities that provide precedents. The following options are based on a framework of free, prior, and informed consent, which emphasizes self-determination and an individual right to pursue economic, social, and cultural development. This framework can be applied to decision making and projects for any topic. Moving forward, government-to-government communication will be key to developing solutions to pressing issues such …

Protecting Terrapins With Teds In Virginia: Lessons From Other States, Bridget Verrekia, Shelby Fuchs

Virginia Coastal Policy Center

This paper highlights case studies about other states' efforts to require or incentivize the use of TEDs [terrapin excluder devices] and recommends policies for Virginia to adopt that have proven successful elsewhere. First, it outlines the threats to terrapins at large, as well as the threat posed by commercial and recreational crabbing, specifically. Next, it details the efforts that other East Coast states have made to combat the problem, including policies that require or incentivize the use of TEDs on crab pots, and discusses the regulatory framework currently in place in Virginia. Finally, this paper concludes by analyzing the approaches …

Course Schedule Spring 2022, William & Mary Law School

Course Information

No abstract provided.