Digital Commons Network^™

Marriage Equality's Lessons For Social Movements And Constitutional Change, William N. Eskridge Jr.

William & Mary Law Review

The marriage equality movement won its first state victory in 2003, and within a dozen years fifty states were handing out marriage licenses. The swiftness of the constitutional triumph was only possible because public opinion underwent a sea change in that period. Sexual and gender minorities achieved this remarkable turnaround once a critical mass, widely dispersed in the country, came out of their closets as committed couples (often raising children), and mainstream America found their stories more consistent with their own lives than they did a generation earlier. Other lessons of marriage equality’s success, however, are how hard it is …

Platform Immunity Redefined, Agnieszka Mcpeak

William & Mary Law Review

Section 230 of the Communications Decency Act (CDA) immunizes “interactive computer services” from most claims arising out of third-party content posted on the service. Passed in 1996, section 230 is a vital law for allowing free expression online, but it is ill-suited for addressing some of the harms that arise in the modern platform-based economy.

This Article proposes to redefine section 230 immunity for sharing economy platforms and online marketplaces by tying internet platform immunity to the economic relationship between the platform and the third party. It primarily focuses on one key flaw of section 230: its binary classification of …

The Qualitative Fourth Amendment: The Case For A Refined, Information-Focused Approach To Fourth Amendment Cases Involving Non-Trespassatory Government Surveillance, Joshua L. Wagner

William & Mary Law Review

In his 2001 majority opinion for Kyllo v. United States, Justice Scalia adopted his characteristic chiding tone to gently reproach what he saw as a notably liberal departure from the original textual interpretation of the Constitution. The Katz test for Fourth Amendment violations, to Scalia, was plainly “circular, and hence subjective and unpredictable.” That it was one of the most influential and oft-discussed decisions the Supreme Court has ever handed down made little difference; regardless of whatever Justice Harlan and his successors had said, the Fourth Amendment was, at its heart, a protection against government interference with property and had …

A Strange Land And A Peculiar Problem: Using Local Knowledge To Resolve Ambiguous Property Descriptions In Appalachia, William L. Spotswood

William & Mary Law Review Online

Conveying property in Appalachia can be somewhat like a box of chocolates: “You never know what you’re gonna get.” Carved by ancient rivers and winding streams, the seemingly never-ending “hollers” and hills of Appalachia can disorient even the best navigator. Couple the region’s rugged topography with an already ambiguous demarcation system, and properties once mapped by metes and bounds descriptions become impossible to re-create with any sort of certainty. Thus, though rooted in a desire for clarity, the combination of mountainous terrain and imperfect demarcation results in a property system riddled with ambiguity. Due to this inherent definitional problem in …

Divided Court Issues Bright-Line Ruling On Fourth Amendment Seizures, Jeffrey Bellin

Popular Media

No abstract provided.

Reanimating The Foreign Compacts Clause, Thomas Liefke Eaton

William & Mary Environmental Law and Policy Review

On October 23, 2019, the United States Department of Justice (“DOJ”) filed a complaint against the State of California “for unlawfully entering a cap and trade agreement with the Canadian Providence of Quebec.” In many ways, the complaint reflects a conventional disagreement between states and the federal government over the contours of federalism, but the complaint’s second cause of action, alleging a violation of the “Compacts Clause,” Article I, section 10(3) of the United States Constitution, is unique. The body of law and scholarship surrounding the Compacts Clause is often guesswork at best, for jurists and scholars alike, because typically …

Amplifying Voices And Fighting Impunity: A Case For Incorporating Victim Impact Into Early Release Decisions At The International Residual Mechanism For Criminal Tribunals, Yasmine Palmer

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

No abstract provided.

"De-Americanization" During The Trump Administration: Derivative Citizenship And Deceased Parents In The United States, Katheryn J. Maldonado

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

The Trump Administration’s war on immigration will be marked in history as one replete with white supremacy and terror. Much attention has been focused in the realm of undocumented immigrants, detention centers, and family separations because of the pervasiveness of those issues and the gravity of the human rights violations occurring in the United States. However, little focus has been given to immigrants who are lawful permanent residents or naturalized citizens at risk of denaturalization and deprivation of their constitutional rights. This Note highlights the effects of the Trump Administration’s war on immigration on citizens and green card holders in …

Relieved Of All Punishment By Human Hands: The Status Of International Criminal Convictions, Dorothy M. Canevari

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

No abstract provided.

Deconstructing Invisible Walls: Sotomayor's Dissents In An Era Of Immigration Exceptionalism, Karla Mckanders

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

No abstract provided.

Family In The Balance: Barton V. Barr And The Systematic Violation Of The Right To Family Life In U.S. Immigration Enforcement, David Baluarte

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

The United States systematically violates the international human right to family life in its system of removal of noncitizens. Cancellation of removal provides a means for noncitizens to challenge their removal based on family ties in the United States, but Congress has placed draconian limits on the discretion of immigration courts to cancel removal where noncitizens have committed certain crimes. The recently issued U.S. Supreme Court decision in Barton v. Barr illustrates the troubling trend of affording less discretion for immigration courts to balance family life in removal decisions that involve underlying criminal conduct. At issue was the “stop-time rule” …

The Continuing Legacy Of The National Origin Quotas, Angela M. Banks

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

No abstract provided.

The Race To The Top To Reduce Prosecutorial Misconduct, Adam M. Gershowitz

Faculty Publications

This Essay offers an unconventional approach to deterring prosecutorial misconduct. Trial judges should use their inherent authority to forbid prosecutors from appearing and handling cases in their courtrooms until the prosecutors have completed training on Brady v. Maryland, Batson v. Kentucky, and other types of prosecutorial misconduct. If a single trial judge in a medium-sized or large jurisdiction imposes training prerequisites on prosecutors, it could set off a race to the top that encourages other judges to adopt similar (or perhaps even more rigorous) training requirements. A mandate that prosecutors receive ethics training before handling any cases is …

Fiduciary Law And The Law Of Public Office, Ethan J. Leib, Andrew Kent

William & Mary Law Review

A law of public office crystallized in Anglo-American law in the seventeenth and eighteenth centuries. This body of law—defined and enforced through a mix of oaths, statutes, criminal and civil case law, impeachments, and legislative investigations—imposed core duties on holders of public executive offices: officials needed to serve the public good, not their own private interests; were barred from acting ultra vires; could often be required to account to the public for their conduct in office; and needed to act with impartiality, honesty, and diligence. Officeholding came to be viewed as conditional, with officers removable for misdeeds. These substantive duties …

The Morality Of Fiduciary Law, Paul B. Miller

William & Mary Law Review

Recent work of fiduciary theory has provided conceptual synthesis requisite to understanding core fiduciary principles and the structure of fiduciary liability. However, normative questions have received only sporadic attention. What values animate fiduciary law? How does, or should, fiduciary law prove responsive to them?

While in other areas of private law theory—notably, tort theory— pioneering scholars went directly at normative questions like these, fiduciary theory has been exceptional in the reticence shown toward them. The reticence is sensible. Fiduciary principles are the product of equity’s most extended and convoluted program of supplementing surrounding law. They span several distinct forms of …

Pernicious Loyalty, Andrew S. Gold

William & Mary Law Review

Fiduciary loyalty is generally considered valuable, and in the usual case it is. Yet some of the very features of loyalty that make it valuable also encourage behaviors harmful to beneficiaries, third parties, or society as a whole. Examples include the corporate director whose concern with shareholder wealth maximization leads to considerable environmental harm and the skillful attorney whose zealous representation undermines justice between the parties. In short, actions that are motivated by good-faith fiduciary loyalty may be undesirable in individual cases. I will describe such cases as cases of pernicious loyalty. Outside the law, pernicious loyalty is often limited …

Fiduciary Judgment Rules, Julian Velasco

William & Mary Law Review

Because of the strong moral rhetoric and robust equitable remedies available in fiduciary law, it is not surprising to find lawyers and legal scholars seeking to expand the reach of fiduciary law principles into new relationships and new areas of law. However, expansion often does not work very well because of the demanding and pervasive nature of fiduciary duties. Thus, jurists often turn to the business judgment rule and its policy of underenforcement of fiduciary duties as a way to fit fiduciary law principles into other areas of law. The problem with this approach is that it is based on …

The Authority Of International Refugee Law, Evan J. Criddle, Evan Fox-Decent

William & Mary Law Review

As COVID-19 has spread around the world, many states have suspended their compliance with a core requirement of international refugee law: the duty to refrain from returning refugees to territories where they face a serious risk of persecution (the duty of non-refoulement). These measures have prompted some observers to question whether non-refoulement will survive the pandemic as a nonderogable legal duty. This Article explains why the international community should embrace non-refoulement as a peremptory norm of general international law (jus cogens) that applies even during public emergencies, such as the coronavirus pandemic. Viewed from a global justice perspective, the …

On Trust: The U.N. Security Council As Fiduciary, Devika Hovell

William & Mary Law Review

Perceived failures by the U.N. Security Council have been characterized as “betrayals of trust,” which threaten to impact the strength of the Council’s authority. In certain legal cultures, fiduciary law has been recognized as an effective legal mechanism to underwrite trust in the exercise of authority. This Article considers the potential value in applying the fiduciary construct to the Security Council setting as a way to consolidate trust. In doing so, it is necessary to unpack two different conceptions of the fiduciary construct: the precept of law (derived from domestic private law) and the precept of authority (sometimes described as …

The Domains Of Loyalty: Relationships Between Fiduciary Obligation And Intrinsic Motivation, Deborah A. Demott

William & Mary Law Review

Recent scholarly inquiry into fiduciary law predominantly focuses on whether the subject is a coherent field and not a piecemeal assortment of doctrinal detail. This Article looks to the future and to relationships between the formal domain of fiduciary law and other factors that shape conduct. These include intrinsic motivation, markets for professional services, and forces like the operation of reputation. The Article demonstrates that looking across domains, from the legal to the extralegal, casts in sharp relief the reasons why fiduciary law is distinctive. These stem from the specific qualities of relationships to which fiduciary law applies, as well …

The Costs Of Dissent: Protest And Civil Liabilities, Timothy Zick

Faculty Publications

This Article examines the civil costs and liabilities that apply to individuals who organize, participate in, and support protest activities. Costs ranging from permit fees to punitive damages significantly affect First Amendment speech, assembly, and petition rights. A variety of common law and statutory civil claims also apply to protest activities. Plaintiffs have recently filed a number of new civil actions negatively affecting protest, including "negligent protest," "aiding and abetting defamation," "riot boosting," "conspiracy to protest," and "tortious petitioning." The labels are suggestive of the threats these suits pose to First Amendment rights. All of these costs and liabilities add …

Breaking Up With Dillion: A Practical Call For Virginia State & Local Government Law Reform, Karly Newcomb

William & Mary Environmental Law and Policy Review

States’ long-standing allegiance to the Dillon Rule stems from the theory that it prevents localities from passing unequal and corrupt laws. However, states with strict adherence to the Dillon Rule have stifled localities from addressing their own issues and priorities. Though the debates surrounding the Dillon Rule’s strengths and weaknesses have existed since its inception, the burdensome effects on a locality’s ability to serve and protect its citizens are constantly evolving. In particular, localities in Dillon Rule states have been unable to enact laws that directly address environmental issues, citing the Dillon Rule as their main obstacle.

Although lobbying Virginia …

Special State Standing Is Environmental: Clarifying Massachusetts V. Epa, Dorothea Allocca

William & Mary Environmental Law and Policy Review

When the Court granted states “special solicitude in [its] standing analysis” in Massachusetts v. EPA, it left lower courts with more questions than answers. While legal scholars continue to debate these questions thirteen years later, the practical impacts of Massachusetts v. EPA are coming into focus. Today states are suing the federal government, often in multistate coalitions, to enforce or challenge federal administrative policies. This intergovernmental, public-law litigation increased dramatically during the Obama administration and has further skyrocketed since January 2017. States do not exclusively rely upon special state solicitude in suing the federal government. However, this lowered procedural bar …

Coordinating Nhpa And Nepa To Protect Wildlife, Tala Dibenedetto

William & Mary Environmental Law and Policy Review

In addition to its ecological and intrinsic significance, wildlife is recognized as invaluable historic and cultural resources. Current laws protecting wildlife, like the Endangered Species Act (“ESA”), fail to recognize this dimension, and are limited in providing meaningful protection for culturally significant wildlife. The cultural and historic value of wildlife was recognized in Dugong v. Rumsfeld, in which the court held that a species of dugong could be considered “historic property” under the National Historic Preservation Act (“NHPA”). NHPA requires federal agencies to evaluate the impact of all federally funded or permitted projects on “historic properties.” It is a close …

Navigating The Blue Economy, Edward Canuel

William & Mary Environmental Law and Policy Review

The time has come, the Walrus said,

To talk of many things:

Of shoes—and ships—and sealing-wax—

Of cabbages—and kings—

And why the sea is boiling hot—

And whether pigs have wings.

And like the conversation of the Walrus and Carpenter walking along the “wet as wet could be” sea, the blue economy offers us the opportunity to talk of many things. Part I of this Article analyzes what the blue economy is and its relevance. Governance mechanisms, including ecosystem-based management and marine spatial planning are introduced and reviewed. The section discusses the benefits associated with such mechanisms, including streamlined decision-making, …

Free Speech, Strict Scrutiny And A Better Way To Handle Speech Restrictions, Aaron Pinsoneault

William & Mary Bill of Rights Journal

When it comes to unprotected speech categories, the Roberts Court has taken an amoral and inaccurate approach. When the Court first created unprotected speech categories-- defined categories of speech that are not protected by the First Amendment-- it was unclear what rendered a category of speech unprotected. One school of thought argued that speech was unprotected if it provided little or no value to society. The other school of thought argued that speech was unprotected if it fell into a certain category of speech that was simply categorically unprotected. Then, in 2010, the Court strongly sided with the latter approach, …

George R. R. Martin's Faith Militant In Modern America: The Establishment Clause And A State's Ability To Delegate Policing Powers To Private Police Forces Operated By Religious Institutions, Andrew Gardner

William & Mary Bill of Rights Journal

Since the very founding of the United States, the complex relationship between government and religion has troubled and concerned lawmakers. The Establishment Clause of the First Amendment to the United States Constitution was one of the first attempts to help define and restrain the government's role in that nexus. Thomas Jefferson, in a letter praising the Establishment Clause, famously wrote that the clause "buil[t] a wall of separation between Church [and] State." However, the extent of the protections that the Establishment Clause was intended to provide is unclear, and judges as well as legal scholars have struggled with interpreting the …

Second Amendment Background Principles And Heller's Sensitive Places, Adam B. Sopko

William & Mary Bill of Rights Journal

Judges and commentators have widely acknowledge that history enjoys a privileged status in Second Amendment cases, but its precise role is undertheorized and rarely controls case outcomes. In particular, courts have been unable to decide "sensitive places" cases-- challenges to location-based gun laws-- in a manner that adheres to Supreme Court precedent because existing Second Amendment doctrine lacks a test for sensitive places cases that uses history and tradition in a principled way. This Article proposes a solution to address that problem.

An untapped source of guidance is the Court's takings jurisprudence. Interpreting their respective constitutional provisions, Justice Scalia observed …

From Civil Rights To Blackmail: How The Civil Rights Attorney's Fees Awards Act Of 1976 (42 U.S.C. § 1988) Has Perverted One Of America's Most Historic Civil Rights Statutes, Steven W. Fitschen

William & Mary Bill of Rights Journal

For fourteen years, members of Congress repeatedly introduced legislation directed at a single subject. A key underpinning for the necessity of the legislation was provided by the opinions of two Supreme Court justices. Yet, for the past nine years, Congress has gone silent on the same topic. This Article argues that it is past time for Congress to reconsider this topic, and that if it will not do so, the Supreme Court can rectify the situation without engaging in judicial legislation.

Perhaps the best view of Congress's efforts can be seen by examining the high-water mark of those efforts, which …

The Nature Of Standing, Matthew Hall, Christian Turner

William & Mary Bill of Rights Journal

Most academic studies of standing have focused on restrictions on federal court jurisdiction drawn from Article III of U.S. Constitution and related doctrinal schemes developed by state courts. These rules are constructed atop a few words of the Constitution: "The judicial Power shall extend to all Cases, in Law and Equity," arising under various circumstances. The Supreme Court has interpreted these words to require federal courts to assess whether a plaintiff has suffered an injury in fact that is both fairly traceable to the actions of the defendant and redressable by a favorable ruling before proceeding to the merits of …