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The High Cost Of Law School Casebooks, Jeffrey Bellin

William & Mary Bill of Rights Journal

Commentators have forecasted the demise of high-priced commercial casebooks for two decades. Yet little has changed. This Symposium Essay explores the headwinds facing free and low-cost books in the law school casebook market. It suggests that the biggest problem is “casebook selection inertia.” Given the centrality of the assigned casebook to a typical law school course, professors face strong incentives to make a safe choice from among the leading casebooks—typically those published by the handful of established academic presses who set the highest prices. These choices stick, not only determining the book that will be used for that professor’s future …

Expanding The Foreign National Prohibition To Combat Russian Interference In U.S. Elections, Hailey Arnett

William & Mary Bill of Rights Journal

In 2016, the Russian government purchased political advertisements from U.S. social media companies like Facebook to sway the U.S. presidential election. These purchases violated the foreign national prohibition (“the Prohibition”), which Congress codified as part of the Federal Election Campaign Act Amendments of 1974 (FECA). This Note explains why Congress should expand the Prohibition to capture the recipients of independent expenditures that violate the Prohibition and fine people who run online platforms that receive independent expenditures or contributions made by foreign nationals in violation of the Prohibition.

Part I describes current U.S. case law on domestic and foreign campaign finance …

Judge Platt Potter: Politics And Principle In Interbranch Conflict, Aaron-Andrew P. Bruhl

Faculty Publications

During the previous Congress, some commentators called on the Senate Judiciary Committee, then controlled by Democrats and chaired by Senator Dick Durbin of Illinois, to demand the testimony of Supreme Court Justices Clarence Thomas and Samuel Alito over allegations of ethical breaches, securing their presence by subpoena if necessary. The Committee did not subpoena the Justices, with Durbin citing the likely lack of sufficient votes and worrying that the Senate would not be able to enforce the subpoenas anyway. During the same Congress, Durbin asked Chief Justice Roberts to testify about judicial ethics, an invitation that Roberts declined.

These incidents …

Rethinking Juror Impartiality, Anna Offit

Faculty Publications

Jury impartiality in the contemporary court often justifies the perpetuation of exclusionary selection practices that make juries more—not less—biased. This Article calls for a rethinking of this important but flawed concept. Constitutional interpretations and conceptions of “impartiality” frame it as a transient orientation toward particular evidence or parties. Yet, during voir dire, the prevailing conception of jury impartiality is that it is an immutable character trait that must be discovered—if not created—by professional legal actors. What voir dire creates is not an impartial jury, but precisely the opposite: a venire shaped by the strategic biases of lawyers.

This Article offers …

Foreword: Casebooks And The Choices That Shape Constitutional Law, Sanford Levinson, Caroline Olsen

William & Mary Bill of Rights Journal

This collection of essays is the product of a conversation between the two co-authors of this Introduction. It occurred toward the conclusion of a very illuminating Symposium at William & Mary Law School in March 2024 on Jack Balkin’s latest book, Memory and Authority, on the role that memory plays in our notions of law. Caroline was the incoming Editor-in-Chief of the William & Mary Bill of Rights Journal, which had sponsored the Symposium. Sandy was a participant in the Symposium. Jack is a very close friend with whom he has coauthored at least two dozen articles and …

Casebooks, Canons, And Constitutional Memory, Jack M. Balkin, Sanford Levinson

William & Mary Bill of Rights Journal

Casebooks on constitutional law take a lot of time and effort to prepare. What is the point of bothering to edit one? There are several possible reasons. First, you might want to make money from sales. For the vast majority of law professors, the financial return to the hours spent organizing and editing cases is simply not worth it. Second, you might be the sort of person who just likes to do things by yourself. If you are going through the bother of preparing your own materials, then why not publish them and possibly influence others as well? Most law …

Table Of Contents (V. 34, No. 2)

William & Mary Bill of Rights Journal

No abstract provided.

What Is The Measure Of Success For A Constitutional Law Casebook?, Erwin Chemerinsky

William & Mary Bill of Rights Journal

In this Essay, I want to address four topics: how I came to write my constitutional law casebook; my goals for my Constitutional Law class and how the book facilitates achieving them; the challenges in writing a constitutional law casebook; and thoughts about the future of constitutional law casebooks.

There are many different constitutional law casebooks on the market because there are countless different ways of teaching the subject. There is no right way or best way to teach this or any other subject in the law school curriculum. I am describing my approach to teaching a subject that is …

Overruled Cases As A Tool For Inculcating Legal Realism, Michael C. Dorf

William & Mary Bill of Rights Journal

The changes wrought by Dobbs and Students for Fair Admissions v. President and Fellows of Harvard College (SFFA) are hardly the only examples of momentous changes to constitutional law in the last few years. Doctrines involving the religion clauses of the First Amendment, the Second Amendment, the scope of the president’s removal power, and much more have been changing rapidly since Amy Coney Barrett replaced Ruth Bader Ginsburg in the fall of 2020, thereby solidifying a conservative supermajority on the Supreme Court. I imagine that the strengthening of the major questions doctrine, the overruling of Chevron deference to federal administrative …

Teaching Firearms Law: One Big Opportunity And Three Pedagogical Challenges, Joseph Blocher, Jacob D. Charles, Darrell A.H. Miller

William & Mary Bill of Rights Journal

The U.S. Supreme Court’s groundbreaking 2008 decision in District of Columbia v. Heller ushered in a new era for the Second Amendment: one in which the right to keep and bear arms, long dormant as a matter of practical impact and even “embarrassing” as a matter of legal scholarship, vaulted into the front ranks of constitutional law. The Court itself has only revisited the Amendment a few times since then—albeit once by revolutionizing the doctrine. Meanwhile, lower courts have issued thousands of decisions giving shape to the right, while scholars have generated work that is increasingly deep, diverse, and challenging. …

Show And Tell: Writing Constitutional Law Casebooks When The Law Doesn't Matter, William D. Araiza

William & Mary Bill of Rights Journal

Writing a constitutional law casebook today presents significant challenges. One reason among several stands out: law matters less—indeed, sometimes very little—to those charged with interpreting our constitutional law and implementing our constitutional system.

This Essay examines this challenge and explains how my contribution to the constitutional casebook genre attempts to answer it. It argues that the current moment requires instructors, and the books they use, to “show”—that is, to demonstrate to their students both the handiwork of those interpreters and implementers and alternative pathways. Sometimes, however, practical considerations preclude such showing. In those situations, “telling” may be required. But regardless …

Coping With A Court One Disagrees With, Randy E. Barnett, Josh Blackman

William & Mary Bill of Rights Journal

Part I of this Essay focuses on our approach to teaching the constitutional canon. This part is adapted from the Preface to our constitutional law casebook. Part II traces the evolution of our casebook from the First Edition to the Fourth Edition, and the forthcoming Fifth Edition. We demonstrate that the constitutional canon has changed, but remains remarkably stable. Part III addresses how we, and other like-minded law professors, managed to teach decisions that we fundamentally disagreed with.

This abstract has been taken from the authors' introduction. 

What Should A Constitutional Law Casebook Be?, William Funk

William & Mary Bill of Rights Journal

What is the purpose of a “casebook”? It is not a “hornbook,” designed to summarize or explain the law in a specific area, generally aimed at law students or lawyers to provide a straightforward statement of the law. It is not a “treatise,” a comprehensive, systematic exposition of the law in a particular field, involving an in-depth analysis and interpretation of the law. And it is not a “study aid,” supplementary material designed to help students do better in their classes. It is the book used by professors in their classes. For professors of constitutional law, it is a tool …

Intellectual Integrity, Collaboration, And The Market, Mark Tushnet

William & Mary Bill of Rights Journal

My reflections are those of someone who co-edited/co-authored two casebooks that were commercially and intellectually successful and one that was intellectually but not commercially successful. I start with the assumption that people decide to do a casebook because they find that existing materials don’t do some things they think ought to be done in the course (and do some things that aren’t really necessary for teaching purposes). That is, doing a casebook is at the outset an intellectual project.

Executing that project runs up against some constraints almost immediately. A simple one is that you might well think that you …

What Belongs In A Constitutional Law Casebook?, Ernest A. Young

William & Mary Bill of Rights Journal

This Essay argues that constitutional law cannot (and should not) be an autonomous subject within the legal curriculum. This argument echoes a long-standing debate about whether law itself is an autonomous scholarly discipline. The answer to that question is surely, as Allan Farnsworth put it, “sometimes YES and sometimes NO.” But this Essay does not focus on law’s autonomy from other disciplines, such as political science, psychology, or economics. Rather, I consider the extent to which constitutional law should overlap with other legal subjects, such as legal history, administrative law, or statutory interpretation. My conclusion is that, at least in …

Generational Impact: How U.S. Government Generative A.I. Use Reinvigorates Copyright-Based Takings Concerns, Sophia Tully

William & Mary Bill of Rights Journal

This Note argues (1) that the unique character of government copyright infringement supports a copyright holder’s use of the Takings Clause of the Fifth Amendment, as opposed to reliance on the Copyright Act for downstream Gen A.I. suits; (2) that Gen A.I. developers may wage similar claims once asserting authorship rights and copyright over their outputs; and (3) that the viability of federal government copyright infringement as a regulatory taking could change the way legal actors deal with copyrighted material. More modestly assessed, an answer on whether the Takings Clause protects copyrights would offer much needed guideposts as intellectual property …

The Political Dynamics Of Constitutional Law, Neal Devins

William & Mary Bill of Rights Journal

No abstract provided.

What Makes A Con Law "Doctrine" And Why Does It Matter?, Allison Orr Larsen

William & Mary Bill of Rights Journal

A few years ago, I started wondering about the “major questions doctrine” (or MQD) in administrative law, and I found myself asking: “When did that become a thing?” I was familiar with the cases that stand for the proposition that Congress does not lightly delegate high stakes questions to administrative agencies—cases that date back to 2000 and specifically to a decision about cigarette advertising and the FDA. But up until 2022, it was rare for courts and commentators to refer to that collection of cases as a “doctrine.” Today, by contrast, the major questions doctrine is bread and butter administrative …

The Localist Roots Of Climate Litigation, Jonathan H. Adler

Popular Media

No abstract provided.

Toward Digital Corporate Law: Revisiting Corporate Law's Responses To Technology, Chen Wang, Ke Xu

William & Mary Business Law Review

This Article examines the dynamic relationship between emerging technologies and corporate law, raising fundamental questions about whether these technological advancements require reshaping traditional legal doctrines. It investigates key aspects of corporate law—including corporate formation, governance, and finance—through a comparative analysis of Chinese and U.S. legal frameworks. This Article critically assesses the ability of contemporary corporate law to respond effectively to technological challenges posed by artificial intelligence (AI), particularly in relation to evolving fiduciary duties of corporate agents and shifts in the balance of power between shareholders and management. Furthermore, this Article proposes innovative strategies for future corporate law development, advocating …

Textualism Wins?: The Supreme Court’S 2024 Labor & Employment Law Cases, Nicole B. Porter

Faculty Publications

The Supreme Court decided five primary labor and employment law cases in 2024—two discrimination cases, two arbitration cases, and one labor law case. This article also discusses a sixth case, Loper Bright Enterprises v. Raimondo, because it will undoubtedly affect labor and employment law despite the facts and underlying issue having nothing to do with the workplace.

I was initially underwhelmed with this year’s cases. None of them addresses any major substantive labor and employment law issue. However, upon further consideration, the cases are noteworthy for three reasons. First, three of them are pro-plaintiff with outcomes that benefit workers— …

Chimeric Contacts And Consent: The Ill-Reasoned Expansion Of Corporate Jurisdictional Exposure, James P. George

William & Mary Business Law Review

Two recent Supreme Court decisions have imposed aspects of general jurisdiction in a way that exposes corporations and possibly other legal actors to litigation in spuriously connected forums. One case—Ford Motor Company v. Montana—reached a fair result but with strained reasoning that will support unfair results. The second case—Mallory v. Norfolk Southern Railroad Company—was wrong on the facts and the law, imposing general jurisdiction based on a vaguely worded corporate registration statute validated by a more than century-old precedent based on Pennoyer v. Neff’s limited territorial model.

Both decisions were the result of conceptual corners …

Embattled Sec Climate-Related Disclosure Regulation, Thomas M. Madden

William & Mary Business Law Review

This Article informs the reader as to the current state of the U.S. Securities and Exchange Commission’s (SEC or Commission) Release No. 33-11275, The Enhancement and Standardization of Climate-Related Disclosures for Investors (the Final Rules), approved and then stayed by the Commission in March of 2024 and now being challenged in the Eighth Circuit Court of Appeals. It argues that the Final Rules are sound and should be upheld for seven articulated reasons, taking into account the arguments made by petitioners and amici curiae in the Eighth Circuit. Moreover, the Article argues that even with Chevron overturned, the Final Rules …

Say Neigh To Handshake Deals: An Economic And Ethical Argument For Written Warranties In The Sales Of Thoroughbred Racehorses, Kate Coulter

William & Mary Business Law Review

Horse racing is one of the largest, most lucrative industries in the United States, but state laws regulating the exchange of billions of dollars through the sales of Thoroughbred racehorses remain inconsistent. Moreover, ethical issues such as poor breeding practices tarnish the reputation of the sport, detracting viewers and consequently endangering the future livelihood of the racing industry. Litigation over birth defects in Thoroughbreds is common, prone to appeal, and expensive. But, this litigation could be mitigated through the use of written warranties in the sale of these highly valuable horses, pursuant to and supplementing the statute of frauds and …

The Nuances Of Prosecutorial Nonenforcement, Meighan R. Parsh, Carissa Byrne Hessick

William & Mary Law Review

The academic literature on prosecutors is divided: Some commentors believe that prosecutors should more aggressively use their ability to decline to bring charges, decreasing the overall number of criminal cases and helping to address the problem of mass incarceration. Others believe that broad prosecutorial nonenforcement poses significant risks to our constitutional order and public safety. While the visibility of this debate has increased—spilling over from the pages of law reviews into political campaigns and headlines—the terms of this debate are at times unclear. Prosecutorial nonenforcement is a multifaceted phenomenon, and discussions about its costs and benefits can obscure necessary tradeoffs …

Presuming Justice For Temp Workers, Andrew Elmore, Kati L. Griffith, Sachin S. Pandya

William & Mary Law Review

Workers need to know who their employers are. Who is responsible for remedying workplace dangers? Who can they sue for restitution when they are discriminated against at work, or do not get paid for all of the hours they work? Temp agency contracts complicate these seemingly simple questions. In workers’ rights cases involving “temps,” courts and administrative agencies often engage in protracted, resource-intensive joint employer inquiries to decide whether the temp agency clients share in employer obligations and liabilities with the agencies. This is the case even when the temp agency client has the key markers of an “employer,” such …

Killing Through Their Kids, Dyllan Moreno Taxman

William & Mary Law Review

In early 2024, James and Jennifer Crumbley were sentenced to over a decade in prison after their son, Ethan, shot and killed four classmates at Oxford High School in Michigan. The Crumbley parents incurred manslaughter liability by ignoring Ethan’s deteriorating mental state, gifting him the murder weapon, and failing to act on concerns about Ethan’s behavior on the day of the shooting. The Crumbleys were the first parents of a school shooter to be convicted of a homicide in American history. This Article suggests they will be far from the last. Indeed, less than one year after the Crumbley convictions, …

Original Public Meaning And The Rule Of Recognition, Andrew Jensen Kerr

William & Mary Bill of Rights Journal

Framer intent no longer possesses the same cachet it once held. But Framer influence still matters for public meaning originalism, particularly for communications like The Federalist Papers, in which Alexander Hamilton, John Jay, and James Madison marketed the work of the Philadelphia Constitutional Convention to state ratifying conventions and the constituencies they represented. Contemporary originalists posit that what the Constitution meant to this public audience at the time of ratification is cemented in time forever (the fixation thesis). The starting point for my analysis is the prosaic observation that our Framers occasionally changed their minds about the meaning of …

Animus, Again, William D. Araiza

William & Mary Bill of Rights Journal

In the first week of his second term, President Donald Trump issued multiple executive orders targeting immigrants and transgender people. Additional actions targeting these and other vulnerable groups have already followed. Others may come; more generally, such orders will likely remain a part of the President’s policy agenda and governing style. These actions call for analysis of the legal tools litigants can deploy to challenge them. That call is urgent, as a response not just to the orders already issued, but to others the Administration might promulgate in the future.

One of those tools is equal protection animus. This Article …

Statutory Copy-Pasting In The Law Of Sovereign Immunity, Chimène I. Keitner

William & Mary Law Review

Congress sometimes copy-pastes language from one statute into another statute. While this can serve the goals of consistency and efficiency, copy-pasting can cause problems when done across disparate legal regimes, such as different sovereign immunity doctrines. When Congress enacted the Foreign Sovereign Immunities Act (FSIA) of 1976, it borrowed language from the Federal Tort Claims Act (FTCA) of 1946 that exempts the exercise of “discretionary functions” from tort jurisdiction. Both statutes allow private damages claims against governmental entities in defined circumstances. Despite this superficial similarity, the statutes were enacted in very different contexts and serve fundamentally different purposes. Nonetheless, courts …