Law Commons^™

Federalism, Free Competition, And Sherman Act Preemption Of State Restraints, Alan J. Meese

Faculty Publications

The Sherman Act establishes free competition as the rule governing interstate trade. Banning private restraints cannot ensure that competitive markets allocate the nation's resources. State laws can pose identical threats to free markets, posing an obstacle to achieving Congress's goal to protect free competition.

The Sherman Act would thus override anticompetitive state laws under ordinary preemption standards. Nonetheless, the Supreme Court rejected such preemption in Parker v. Brown, creating the "state action doctrine." Parker and its progeny hold that state-imposed restraints are immune from Sherman Act preemption, even if they impose significant harm on out-of-state consumers. Parker's progeny …

Toward A Virginia Ocean Plan: Lessons And Recommendations From Other States, Nathaniel Dominy, Luke Foley

Virginia Coastal Policy Center

Virginia’s ocean waters feature vast natural resources, and are used by its residents, visitors, and the military for recreation, commerce, and national security. New and intensified uses, such as offshore energy production, aquaculture, and increased shipping could impact Virginia’s ocean resources. To ensure the continued protection of these resources, while allowing them to be used sustainably, the Commonwealth is developing its first ocean management plan. Because several state agencies currently manage Virginia’s territorial sea waters, a coordinated and proactive approach is needed to effectively develop this plan. Developing a Virginia Ocean Plan can help protect the Commonwealth’s ocean resources and …

Undue Deference To States In The 2020 Election Litigation, Joshua A. Douglas

William & Mary Bill of Rights Journal

COVID-19 has wreaked havoc on so much of our lives, including how to run our elections. Yet the federal courts have refused to respond appropriately to the dilemma that many voters faced when trying to participate in the 2020 election. Instead, the courts—particularly the U.S. Supreme Court and the federal appellate courts—invoked a narrow test that unduly defers to state election administration and fails to protect adequately the fundamental right to vote.

In constitutional litigation, a law usually must satisfy a two-part test: (1) does the state have an appropriate reason for the law and (2) is the law properly …

#Blacklivesmatter: From Protest To Policy, Jamillah Bowman Williams, Naomi Mezey, Lisa Singh

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

We find that the protests of 2020 did indeed begin a paradigm shift in the social awareness of racialized police violence, and this important and significant social change has in turn already inspired political change and some degree of legal and policy change. However, the movement remains in a precarious position and it is uncertain how enduring these changes will be. While many state legislators and local officials have responded to the protests with policy reforms, policy action at the federal level is mostly stalled. In addition, it is unclear whether the state and local policy changes will lead to …

Executive Unilateralism And Individual Rights In A Federalist System, Meredith Mclain, Sharece Thrower

William & Mary Bill of Rights Journal

Presidents have a wide array of tools at their disposal to unilaterally influence public policy, without the direct approval of Congress or the courts. These unilateral actions have the potential to affect a variety of individual rights, either profitably or adversely. Governors too can employ unilateral directives for similar purposes, often impacting an even wider range of rights. In this Article, we collect all executive orders and memoranda related to individual rights issued between 1981 and 2018 at the federal level, and across the U.S. states, to analyze their use over time. We find that chief executives of all kinds …

No Time To Waste: Can A State Prevent Nuclear Waste Transportation Within Its Borders Once Yucca Mountain Becomes Operational?, Ryan Franklin

William & Mary Environmental Law and Policy Review

Following the drop of the first atomic bomb over Hiroshima on August 6th, 1945, the United States seriously began contemplating the use of atomic energy not just as a weapon, but as an efficient energy source. President Eisenhower delivered his “Atoms for Peace” speech in front of the United Nations eight years later, effectively launching a massive American campaign to build numerous nuclear power plants to generate enough clean energy to power the entire nation. As these plants were being constructed, however, policymakers and lawmakers who were champions of this endeavor failed to consider the problem of nuclear waste generated …

Congestion Pricing And The Opportunity To Confront New York City's Air Quality Emergency, Chad Hughes

William & Mary Environmental Law and Policy Review

Poor air quality in New York City is a public health emergency that disproportionately harms the city’s most vulnerable populations. Recent studies have found that exposure to particulate matter pollution previously thought “safe” causes significant damage to perhaps every organ of the human body. While New York City has reduced particulate matter exposure over the last decade, progress has stalled. In fact, climate change, the shift in the automobile market from sedans to SUVs and “light” trucks, and the federal pullback of environmental enforcement under Trump suggest that air pollution in New York City is likely to worsen.

While the …

The Impact Of Climate Change On Virginia's Coastal Areas, Jonathan L. Goodall, Antonio Elias, Elizabeth Andrews, Christopher "Kit" Chope, John Cosgrove, Jason El Koubi, Jennifer Irish, Lewis L. Lawrence Iii, Robert W. Lazaro Jr., William H. Leighty, Mark W. Luckenbach, Elise Miller-Hooks, Ann C. Phillips, Henry Pollard V, Emily Steinhilber, Charles Feigenoff, Jennifer Sayegh

Faculty Publications

As part of HJ47/SJ47 (2020), the Virginia General Assembly directed the Joint Commission on Technology and Science (JCOTS) to study the “safety, quality of life, and economic consequences of weather and climate-related events on coastal areas in Virginia.” In pursuit of this goal, the commission was to “accept any scientific and technical assistance provided by the nonpartisan, volunteer Virginia Academy of Science, Engineering, and Medicine (VASEM). VASEM convened an expert study board with representation from the Office of the Governor, planning district commissions in coastal Virginia, The Port of Virginia, the Virginia Economic Development Partnership, state universities, private industry, and …

Who And What Is A City "For"? Municipal Associational Standing Reexamined, Kaitlin Ainsworth Caruso

William & Mary Law Review Online

Cities nationwide increasingly engage in affirmative, plaintiff-side litigation to protect their residents. But despite this trend, standing remains a persistent challenge in municipal affirmative litigation—particularly in federal court, and particularly in impact litigation. I have previously proposed one way to give cities standing in federal court more in line with that of states, and with the role that cities play in their residents’ lives: extending to municipalities the doctrineof associational standing, which nonprofits and associations use to speak for their members in court. Recent works have both amplified and critiqued that initial proposal. With these additional considerations in hand, we …

Greening The Trust: Enforcing Pennsylvania's Environmental Rights And Duties To Combat Climate Change, Julia E. Sappey

William & Mary Law Review

Over the last century, humans have warmed the planet by approximately 1.0°C. Pennsylvania’s average temperature has risen 1.8°F in the last hundred years, and climate scientists predict it will warm an additional 5.4°F by 2050. These rising temperatures create feedback loops, leading to warming that will eventually become irreversible. Warmer temperatures have already led to melting ice caps, rising sea levels, dangerous weather patterns, and food shortages. Human-produced greenhouse gases (GHG) are the largest contributing factor to this warming. The scientific community largely agrees that if humans do not reach carbon neutrality by 2050, damage to the climate will be …

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 …

The Hoosiers Got It Wrong: The Need For States To Enact Stricter Prescribing Regulations Via Telemedicine Services, Gabrielle A. Vance

William & Mary Business Law Review

In 2016 and 2017, Indiana amended its state telemedicine regulations to allow Indiana physicians to prescribe controlled substances to patients without an in-person examination. Although there are many promising benefits of telemedicine, researchers have not yet conducted enough tests or studies to fully know the consequences of prescribing without an in-person examination as well as other concerns with telemedicine services. In light of the ongoing opioid epidemic, lawmakers should be even more hesitant to lower the standards for prescribing regulations.

This Note will propose alternative solutions for legislators regarding telemedicine regulations and explain why other states should not mirror Indiana’s …

Flooding Their Mailbox: Recommendations For Notifying Residents Of Changes To Fema Flood Maps, Andrew Major, Alston Underwood

Virginia Coastal Policy Center

No abstract provided.