Law Commons^™

The Legal Origins Of Catholic Conscientious Objection, Jeremy Kessler

William & Mary Bill of Rights Journal

This Article traces the origins of Catholic conscientious objection as a theory and practice of American constitutionalism. It argues that Catholic conscientious objection emerged during the 1960s from a confluence of left-wing and right-wing Catholic efforts to participate in American democratic culture more fully. The refusal of the American government to allow legitimate Catholic conscientious objection to the Vietnam War became a cause célèbre for clerical and lay leaders and provided a blueprint for Catholic legal critiques of other forms of federal regulation in the late 1960s and early 1970s—most especially regulations concerning the provision of contraception and abortion.

Over …

The Original Meaning Of The Habeas Corpus Suspension Clause, The Right Of Natural Liberty, And Executive Discretion, John Harrison

William & Mary Bill of Rights Journal

The Habeas Corpus Suspension Clause of Article I, Section 9, is primarily a limit on Congress’s authority to authorize detention by the executive. It is not mainly concerned with the remedial writ of habeas corpus, but rather with the primary right of natural liberty. Suspensions of the privilege of the writ of habeas corpus are statutes that vest very broad discretion in the executive to decide which individuals to hold in custody. Detention of combatants under the law of war need not rest on a valid suspension, whether the combatant is an alien or a citizen of the United States. …

More Than Hungry: How Political Narratives Built & Maintain Hunger In The United States, A. Camille Karabaich

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

This Note aims to examine the role of the legal system in creating and maintaining hunger in the United States. Through this lens, the Note discusses the shift necessary to support specific legal interventions to end hunger. This Note begins by discussing how hunger was built in the United States through policies regarding land, housing, incarceration, and food, and the narratives that allowed these policies to flourish. These policies created hunger by creating pockets of poverty and disempowerment. Although many individuals and organizations donate their time, money, and energy to support local food banks, soup kitchens, and free school meal …

The Jurisprudence Of The First Woman Judge, Florence Allen: Challenging The Myth Of Women Judging Differently, Tracy A. Thomas

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

This Article delves into the life and work of Judge [Florence] Allen to provide insight to the contributions and jurisprudence of the first woman judge. For history questions what difference putting a woman on the bench might have made. Part I explores Allen’s early influences on her intellectual development grounded in her progressive and politically active family, and her close network of female professional friends. Part II discusses her pivotal work with the women’s suffrage movement, working with the national organizations in New York and leading the legal and political efforts in Ohio. This proactive commitment to gender justice, however, …

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 …

Flexibly Fluid & Immutably Innate: Perception, Identity, And The Role Of Choice In Race, Emily Lamm

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

No abstract provided.

Western Reconstruction And Woman Suffrage, Lorianne Updike Toler

William & Mary Bill of Rights Journal

The normal narrative of woman suffrage in the United States begins in Seneca Falls, New York, and steadily marches along through the lives and papers of the most noteworthy national suffragettes—Elizabeth Cady Stanton, Susan B. Anthony, Lucy Stone, and a handful of other women until the hard-fought passage of the Nineteenth Amendment. The six-volume History of Woman Suffrage tomes tells just such a story.

Yet the dominant narrative “overgeneralizes the experiences of the national, largely eastern leadership” and “generally neglect[s] the West, or fail[s] to evaluate its significance within the national movement.” Although the American Woman Suffrage Association was organized …

Functional Corporate Knowledge, Mihailis Diamantis

William & Mary Law Review

The line between guilt and innocence often turns on what a defendant knew. Although the law’s approach to knowledge may be relatively straightforward for individuals, its doctrines for corporate defendants are fraught with ambiguity and opportunities for gamesmanship. Corporations can spread information thinly across employees so that it is never “known.” And prosecutors can exploit legal uncertainties to bring knowledge-based charges where corporations were merely negligent in how they handled information. Whereas knowledge as a mens rea has unique practical and normative properties that vary with a corporation’s size and industry, corporate law treats knowledge just like any other mental …

Puerto Rico, Inc.: Implicit Incorporation And Puerto Rico’S Right To Vote For Presidential Electors, Aaron Barden

William & Mary Bill of Rights Journal

No abstract provided.

Fulfilling Climate Justice And Government Obligations To Alaska Native Villages: What Is The Government Role?, E. Barrett Ristroph

William & Mary Environmental Law and Policy Review

Climate change has had significant impacts on lands and communities across the United States, and particularly on Alaska Native Villages (“ANVs”). These Arctic and sub-Arctic indigenous communities, which are often remote and rural, depend on the land and water for their nutritional and cultural survival. My research draws from 153 interviews and conversations with ANV residents and those who make or influence policy for ANVs, along with local, state, and federal plans and laws relevant to ANVs and climate change. I consider the current and potential role of the federal and Alaskan governments in assisting ANVs and other communities to …

Waste Size: The Skinny On The Environmental Costs Of The Fashion Industry, Elisha Teibel

William & Mary Environmental Law and Policy Review

The fashion industry is a web of complex global markets currently valued at $3 trillion that employs somewhere around sixty million people worldwide and is estimated to be one of the most labor-intensive industries on the planet. Over the past couple of decades, the industry has evolved into a highly fragmented sector with complicated supply chains and completely unstandardized production practices, which vary by factory and by country. The most significant facet of the fashion trade is the clothing and textile industry. The current total value of the clothing and textiles trade is estimated at $726 billion and a staggering …

The Next Forty Presidents, Ori Aronson

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

A thought experiment in feminist constitutionalism, this Article explores a radical argument: allow only women to be elected as the next forty U.S. presidents. While on its face blatantly discriminatory, the forty female presidents rule turns out to be a robustly justifiable idea, along multiple axes of political fairness, and not to women alone—rather to the electorate as a whole. Due to several of its unique characteristics, the presidency turns out to be particularly fitting to innovation that would correct past injustices of political exclusion. Corrective justice, affirmative action, feminist critique, voter autonomy, and the democratic costs of identity politics …

Law Reform In The Ancient World: Did The Emperor Augustus Succeed Or Fail In His Morals Legislation?, Charles J. Reid Jr.

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

This is an Article with a dual purpose. First, it is concerned with the process of law reform: how do we judge a given reform’s success or failure? Do we adopt strictly linear metrics? Or do we look at nonlinear impacts? For example, in the campaign against tobacco, do we judge it a success because it has reduced cigarette smoking? Or because it reduced the political power of the tobacco companies?

Secondly, in this Article, I apply this complex means of analyzing law reform to the Emperor Augustus’s morals legislation. Legal historians have typically regarded Augustus’s morals legislation as having …

Feminist Legal Theory As A Way To Explain The Lack Of Progress Of Women’S Rights In Afghanistan: The Need For A State Strength Approach, Isaac Kfir

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

Cultural and religious practices are critical to explaining Afghanistan’s dreadful reputation concerning the preservation, protection, and promotion of women’s rights. Those advocating misogynistic practices assert that the calls for reforms challenge their religion and culture, while also claiming that many women’s issues exist within the private realm. Accordingly, they assert that reforms that aim at addressing disempowerment are not vital to the state and go beyond the established limits of state authority. Building on feminist legal theory, which distinguishes between the public and private spheres, I argue in Afghanistan misogynistic and discriminatory practices stem from contrived cultural and religious norms. …

The Fairest Of Them All: The Creative Interests Of Female Fan Fiction Writers And The Fair Use Doctrine, Pamela Kalinowski

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

No abstract provided.

Solving Problems Vs. Claiming Rights: The Pragmatist Challenge To Legal Liberalism, William H. Simon

William & Mary Law Review

Recent developments in both theory and practice have inspired a new understanding of public interest lawyering. The theoretical development is an intensified interest in Pragmatism. The practical development is the emergence of a style of social reform that seeks to institutionalize the Pragmatist vision of democratic governance as learning and experimentation. This style is reflected in a variety of innovative responses to social problems, including drug courts, ecosystem management, and "new accountability" educational reform. The new understanding represents a significant challenge to an influential view of law among politically liberal lawyers over the past fifty years. That view, Legal Liberalism, …

The State Of The Canon In Constitutional Law: Lessons From The Jurisprudence Of John Marshall, David E. Marion

William & Mary Bill of Rights Journal

Constitutional law has been an active battlefield as competing groups within the academy seek to deconstruct, reconstruct, and/or relegitimize the teaching and practice of law in the United States. Much of the rhetoric of the debate is couched in the language of rights. There is a danger that diminished attention to powers in the rhetoric and teaching of constitutional law may compromise sober and moderate constitutional reasoning. By reinvigorating reflection on powers-related issues, the legal profession can do its part to promote sobriety, and hence an added dose of prudence, in constitutional reflection and discourse by a democratic citizenry whose …

Islam And The Death Penalty, William A. Schabas

William & Mary Bill of Rights Journal

Capital punishment is not practiced by a majority of the world's states. Anti-capital punishment domestic policies have led to an international law of human rights that emphatically prohibits cruel and inhuman punishment. International concern for the abolition of capital punishment has prompted Islamic states that still endorse and practice the death penalty to respond with equally compelling concerns based on the tenets of Islamic law. Professor William A. Schabas suggests that Islamic states view capital punishment according to the principles embodied in the Koran. Islamic law functions on the belief that all people have a right to life unless the …

Religious Organizations And The Death Penalty, Robert F. Drinan

William & Mary Bill of Rights Journal

Over the past several years, many questions have been raised concerning the application and effectiveness of the death penalty. Ironically, the Catholic Church, a long-time supporter of the death penalty, has become one of the most vocal critics of the death penalty. In this Essay, Father Robert F. Drinan documents the Church's new-found opposition to the death penalty, and discusses the influence the Church will have on the future of the death penalty.

God And The Executioner: The Influence Of Western Religion On The Use Of The Death Penalty, Davison M. Douglas

William & Mary Bill of Rights Journal

In this Essay, Professor Douglas conducts an historical review of religious attitudes toward capital punishment and the influence of those attitudes on the state's use of the death penalty. He surveys the Christian Church's strong support for capital punishment throughout most of its history, along with recent expressions of opposition from many Protestant, Catholic, and Jewish groups. Despite this recent abolitionist sentiment from an array of religious institutions, Professor Douglas notes a divergence of opinion between the "pulpit and the pew" as the laity continues to support the death penalty in large numbers. Professor Douglas accounts for this divergence by …

Religious Neutrality And The Death Penalty, Arnold H. Loewy

William & Mary Bill of Rights Journal

Cases involving the Establishment of Religion Clause predominantly emphasize religious neutrality. Believing this to be normatively correct, Professor Loewy argues for religious neutrality in capital punishment cases. In accordance therewith, he would uphold religious peremptory challenges where a juror's religious belief is related to her death penalty perspective. Professor Loewy agrees with the courts'general willingness to disallow religion as an aggravating factor while allowing it as a mitigating factor. This dichotomy comports with the neutrality principle because aggravating factors, in general, are limited whereas mitigating factors are unlimited.

The Role Of Organized Religions In Changing Death Penalty Debates, Michael L. Radelet

William & Mary Bill of Rights Journal

In his Article, Professor Michael L. Radelet describes a global decline in the use of the death penalty, the United Nation's progressively stronger stance against executions, and a growing opposition to capital punishment in the United States. This decrease is attributed to both empirical studies casting doubt on the death penalty's efficacy in promoting its stated underlying goals, and to the increasingly vocal stance of religious leaders morally opposed to capital punishment. Nevertheless, the decline in other justifications for capital punishment has been met with increasing reliance on retribution as the primary argument in its support. Professor Radelet argues that …

Capital Punishments And Religious Arguments: An Intermediate Approach, Samuel J. Levine

William & Mary Bill of Rights Journal

Determining the place and use of capital punishment in the American legal system is a challenging affair and one that is closely associated with and determined by religion's role in American legal decision-making. Both capital punishment and religion are controversial issues, and tend to challenge legal scholars and practitioners about whether they should function together or alone as valid parts of the legal system in the United States. Professor Levine argues that religious arguments should be employed to interpret and explain American legal thought when the need or proper situation arises. He uses capital punishment as an example of how …

Transcript Of Speech On Religions's Role In The Administration Of The Death Penalty, Pat Robertson

William & Mary Bill of Rights Journal

No abstract provided.

Punishment At All Costs: On Religion, Convicting The Innocent, And Supporting The Death Penalty, Robert L. Young

William & Mary Bill of Rights Journal

This Paper explores the impact of the belief structure among white fundamentalist denominations on the support for the death penalty. Professor Robert L. Young observes that the tenets of fundamentalism, as well as the great extent that fundamentalists conform to the positions of their clergy, support this link between fundamentalism and a punitive orientation toward wrongdoers. Professor Young explains that members in white fundamentalist churches, to a greater extent than others, are inclined toward a negative view of human nature, which in turn leads to the belief that letting the guilty go free is a more serious mistake than convicting …

Lincoln, Vallandingham, And Anti-War Speech In The Civil War, Michael Kent Curtis

William & Mary Bill of Rights Journal

In the early morning hours of May 5, 1863, Union soldiers forcibly arrested Clement L. Vallandigham, a prominent Democratic politician and former congressman, for an anti-war speech which he had given a few days earlier in Mount Vernon, Ohio. Vallandigham's arrest ignited debate about freedom of speech in a democracy during a time of war and the First Amendment rights of critics of an administration. This Article is one in a series by Professor Curtis which examines episodes in the history of free speech before and during the Civil War.

In this Article, Professor Curtis explores the First Amendment's guarantee …

Chaos Theory And The Justice Paradox, Robert E. Scott

William & Mary Law Review

No abstract provided.