Law Commons^™

Summary Dispositions As Precedent, Richard C. Chen

William & Mary Law Review

The Supreme Court’s practice of summarily reversing decisions based on certiorari filings, without the benefit of merits briefing or oral argument, has recently come under increasing scrutiny. The practice is difficult to square with the Court’s stated criteria for granting certiorari and its norms against reviewing fact-bound cases to engage in mere error correction. Nonetheless, there is growing acceptance that the practice is likely to continue in some form, and the conversation has shifted to asking when the use of summary dispositions should be considered proper. Commentators have had no trouble identifying the Court’s tendencies: summary dispositions are most commonly …

No-Fault Digital Platform Monopolization, Marina Lao

William & Mary Law Review

The power of today’s tech giants has prompted calls for changes in antitrust law and policy which, for decades, has been exceedingly permissive in merger enforcement and in constraining dominant firm conduct. Economically, the fear is that the largest digital platforms are so dominant and its data advantage so substantial that competition is foreclosed, resulting in long-term harm to consumers and to the economy. But the concerns extend beyond economics. Critics worry, too, that the large platforms’ tremendous economic power poses risks of social and political harm and threatens our democracy. These concerns have prompted discussions of ways to reinvigorate …

Extrajudicial Statements And Prejudice In The Digital Age: Creating Factors To Preserve The Balance Between Attorney And State Interests In Trial Litigation, Emily R. O'Hara

William & Mary Law Review

As social media’s prevalence and usage grows within the United States, people and organizations capitalize on new media to send news to users. In 2017, 67 percent of people consumed their news from social media websites, and the rate continues to grow. Local and national news sources bring newsworthy stories to active users on social media sites such as Twitter, where users can communicate and interact with one another to promote ideas and spread information. These online accounts cover not only mundane, day-to-day news, but also salacious stories relating to civil and criminal lawsuits.

In April 2018, attorney Neal Katyal …

A Brief History Of Judical Appointments From The Last 50 Years Through The Trump Administration, Donald F. Mcgahn Ii

William & Mary Law Review

Thank you so much for that kind introduction. I really appreciate the opportunity to be here today. I am going to talk about the confirmation process generally. There is no better place to talk about it than here. Let me begin with some numbers and statistics, before I turn to the main thrust of my talk, to give some context as to what recent Presidents have done with respect to judicial appointments. President Trump has appointed two Supreme Court Justices, Neil Gorsuch and Brett of Appeals; twenty-nine so far have been confirmed. The Senate Leader, Senator Mitch McConnell, has already …

Endrew's Impact On Twice-Exceptional Students, Catherine A. Bell

William & Mary Law Review

Approximately 2 to 5 percent of the American student population qualifies as both gifted and learning disabled. These students, labeled by educators as “twice-exceptional,” generally demonstrate superior cognitive ability, yet also present profound weaknesses in seemingly basic skills. This disconnect in twice-exceptional students’ abilities produces great difficulties for America’s public schools.

Twice-exceptional students, as a result of their disability, can generally qualify for special education services under the federal Individuals with Disabilities Education Improvement Act of 2004 (IDEIA). Once a student qualifies for services under the IDEIA, he is entitled to receive a Free and Appropriate Public Education (FAPE). The …

The Forgotten Relatives In The Fight Against Family Separation: A Constitutional Analysis Of The Statutory Definition Of Unaccompanied Minors In Immigration Detention, Alysa Williams

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

No abstract provided.

Blatantly Biased: Expanding Pena-Rodriguez To Cases Of Bias Against Sexual Orientation, Religion, And Sex, Tressa Bussio

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

No abstract provided.

Who Tells Your Story: The Legality Of And Shift In Racial Preferences Within Casting Practices, Nicole Ligon

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

No abstract provided.

The Effects Of Rejecting Mind-Body Dualism On U.S. Law, Matthew W. Lawrence

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

While neuroscience continues to make it clearer that mental processes, effects, disorders, and states can be described through physical observation, the metaphysical notion of mind-body dualism still pervades the U.S. legal system. In this Article, I discuss many areas where mind-body dualism holds fast, and others where mind-body dualism has already been explicitly or impliedly rejected. I argue that in most areas, the dualist distinction would have little to no impact on the values the law already describes. However, I argue that rejecting dualism would have an impact on fundamental rights analyses. First Amendment free speech rights, fundamental rights, and …

Free-Speech Formalism And Social Injustice, Stephen M. Feldman

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

The Roberts Court has shifted constitutional law in a formalist direction. This Essay explains the Court’s formalism and its causes and consequences in First Amendment free-expression cases. The thesis is that the current conservative justices’ reliance on formalism intertwines with their attitudes toward public and private spheres of activity. Their attitudes toward the public-private dichotomy are, in turn, shaped by their political ideologies as well as by the contemporary practices of democratic government, which have shifted significantly over American history. Formalism contains an inherent political tilt favoring those who already wield power in the private sphere. Formalism favors the wealthy …

Stripped: Speech, Sex, Race, And Secondary Effects, Lisa Crooms-Robinson

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

No abstract provided.

Introduction, Dania Matos

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

No abstract provided.

The Redistricting Amendment Will Strengthen Democracy In Virginia, Alex Keena, Michael D. Gilbert, Rebecca Green

Popular Media

No abstract provided.

Protecting The States From Electoral Invasions, Drew Marvel

William & Mary Bill of Rights Journal

Since the 2016 U.S. presidential election, the threat of foreign interference in U.S. elections has loomed large in the minds of the American public. During the 2016 campaign season, Russian government-backed hackers infiltrated the networks and computers of the Democratic National Committee (DNC), the Democratic Congressional Campaign Committee (DCCC), and various campaign officials, harvesting private information and installing spyware and malware for ongoing intelligence purposes. U.S. intelligence officials have indicated that, using similar tactics, the Russian hackers also targeted election systems and officials in all fifty states, successfully breaching at least two of those states’ election systems, Illinois and Florida. …

"When The Enemy Drew Our Attention": Reconsidering Prior Restraint In The Context Of Dual Use Research Of Concern, Caine Caverly

William & Mary Bill of Rights Journal

Through 2016 and 2017, a team led by Canadian virologist David Evans, and funded by an American pharmaceutical company, attempted to synthesize the previously extinct horsepox virus. After just six months and an expenditure of $100,000, the research team was able to successfully construct the virus “using only commercially available information, technology and tools.” In January of 2018, the team went on to publish their information in an American-based journal, PLOS ONE.

The publication was controversial because it included a potential “blueprint” for the synthesis of a genetic strand in the same viral family as the highly lethal, albeit eradicated, …

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 …

Is The "Hire American" Executive Order A Suspect Classification?, Michael H. Leroy

William & Mary Bill of Rights Journal

President Trump’s Executive Order 13,788 declares a “Hire American” policy for H-1B visas. This action discriminates against Indians to benefit white American workers. The technology workforce in the United States has 4.6 million jobs. Most employees in this large workforce—about 76%—are U.S.-born. In this domestic segment, 85% of employees are white. Among foreign-born workers (11.6% of all workers), Asians make up 66%, with Indians predominating.

“Hire American” renews a mostly forgotten history of discrimination against Indian workers. The Immigration Act of 1917 enacted an “Asiatic Barred Zone.” Indian immigration was curtailed to 100 annual arrivals. Typical of the period, the …

"Great Variety Of Relevant Conditions, Political Social And Economic": The Constitutionality Of Congressional Deadlines On Amendment Proposals Under Article V, Danaya C. Wright

William & Mary Bill of Rights Journal

Within a year or two, the thirty-eighth state is likely to ratify the Equal Rights Amendment (ERA), setting up an unprecedented constitutional challenge. The ERA was proposed with a seven-year deadline in the resolving clause, establishing the mode of ratification. That was a shift from earlier precedents in which a deadline had been placed in the text of the amendment proposal itself. Article V is annoyingly silent on the issue of congressional deadlines in amendment proposals, and the Supreme Court has never addressed the issue of a deadline that could void an otherwise properly ratified amendment. The practice of placing …

Safeguarding Fair Use Through First Amendment's Asymmetric Constitutional Fact Review, Amanda Reid

William & Mary Bill of Rights Journal

This Article proposes a novel procedural safeguard for copyright fair use. Two courts recently overturned jury verdicts on the question of fair use. In Corbello v. De Vito, the trial court overturned a jury verdict that had rejected a fair use defense. In Oracle America, Inc. v. Google LLC, the Federal Circuit reversed a jury verdictthat had found in favor of a defendant's fair use defense. While this Article offers a new perspective on these cases, the main goal is more ambitious: a theoretical framework to heighten protection for the free expression interests of users of copyrighted works. Specifically, appellate …

Legislators On Executive-Branch Boards Are Unconstitutional, Period, Douglas Laycock

William & Mary Bill of Rights Journal

Virginia statute makes legislators categorically “ineligible to serve on boards, commissions, and councils within the executive branch of state government who are responsible for administering programs established by the General Assembly.” But with increasing frequency, the General Assembly has enacted exceptions to this policy. There is a general exception for bodies “engaged solely in policy studies or commemorative activities,” and perhaps such bodies need not be in the executive branch at all. But the Assembly has also enacted exceptions for twenty-one specific boards and commissions, many of which clearly have executive authority. This list of exceptions is a miscellany with …

Redistricting Amendment Is Progress For Virginia, Rebecca Green

Popular Media

No abstract provided.

Right On Time: A Reply To Professors Allen, Claeys, Epstein, Gordon, Holbrook, Mossoff, Rose, And Van Houweling, Dotan Oliar, James Y. Stern

Faculty Publications

A simple observation started us off in writing Right on Time. Studying and teaching intellectual property law, we noticed striking parallels between traditional first possession rules in property law and analagous rules governing the acquisition of patent, copyright, and trademark rights. We thought that established first possession principles could illuminate the workings of IP law. As we dug in, however, it became increasingly clear that our premise wasn’t quite right. While many penetrating commentators had said many penetrating things about first possession, the leading treatments tended to focus on significant individual aspects of the overall issue. What we could …

Innovating Federalism In The Life Sciences, Myrisha S. Lewis

Faculty Publications

This Article challenges the view that the US. Food and Drug Administration (FDA) has exclusive Jurisdiction over life sciences innovations. Many current and forthcoming life sciences innovations are "innovative therapies" such as gene editing, gene therapy, and regenerative stem cell treatments, which are actually "hybrids" of state and federal Jurisdiction. Thus, both state and federal Jurisdiction coexist: federal Jurisdiction exists to the extent that these medical innovations use drugs or biologics, but state Jurisdiction exists to the extent that these innovations are procedures regulated by states as the practice of medicine.

This Article argues that the regulation of numerous current …

Liquidating Elector Discretion, Rebecca Green

Faculty Publications

In Chiafalo et al. v. Washington, the US. Supreme Court determined that states may constitutionally remove or punish faithless electors. In support of its holding, the Court cited a 2014 case called National Labor Relations Board v. Noel Canning, which blessed a form of constitutional interpretation that looks to settled practice (or "liquidation," as James Madison called it) to resolve constitutional ambiguity. The Court agreed with petitioners that electors following the majority will of voters in their state is settled practice. This Article engages this assertion, suggesting that the question is more nuanced than the Court allowed. It …

Of Moral Outrage In Judicial Opinions, Duane Rudolph

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

Moral outrage is a substantive and remedial feature of our laws, and the Article addresses three questions overlooked in the scholarly literature. What do judges mean when they currently express moral outrage in the remedies portion of their opinions? Should judges express such moral outrage at all? If so, when? Relying on a branch of legal philosophy known as hermeneutics that deals with the interpretation and understanding of texts, the Article argues that in interpreting and understanding cases judges should express moral outrage when faced with individuals from communities whose voice has historically been at risk, is currently at risk, …

Digital Internment, Margaret Hu

Faculty Publications

In Korematsu, Hirabayashi, and the Second Monster, Eric L. Muller explores whether Korematsu v. United States is dead post-Trump v. Hawaii, and whether by failing to strike down Hirabayashi v. United States, the “mother” of Korematsu and a “second monster” lives on. This brief response Essay contends that answering these questions first demands grasping how Trump v. Hawaiifailed to fully address the program implemented by the Muslim Ban–Travel Ban: Extreme Vetting. Extreme Vetting can be characterized as a form of “digital internment” through a complex web of cybersurveillance, administrative-imposed restraints, and “identity-management” rationales that are …

Accommodating Pregnancy Five Years After Young V. Ups: Where We Are & Where We Should Go, Nicole Buonocore Porter

Faculty Publications

This Article will explore how pregnant employees fare when they are denied accommodations in the workplace that would have allowed them to work safely through their pregnancies. The two most commonly used legal avenues for pregnant plaintiffs are the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA). Successful cases under the ADA were rare until Congress expanded the ADA’s definition of disability in 2008. PDA claims became easier after the Supreme Court’s 2015 decision in Young v. United Parcel Service, Inc. This Article will analyze both the body of PDA cases decided since Young, and …

Climate Change Management In The Space Age, Paul B. Larsen

William & Mary Environmental Law and Policy Review

This Article is about how we can use space technology and regulation to help overcome adverse effects of climate change on Earth. It describes the growing use and importance of outer space technology for monitoring, understanding, and resolving the problems of climate change. It describes precedents for the current climate crisis, discusses relevant international space laws, and explains how they fit into the existing international laws on climate change. It emphasizes the oversight role of the United Nations (“U.N.”). It describes the heavy duties placed by current climate laws on the developed countries compared with the developing countries. It explains …

After Juliana: A Proposal For The Next Atmospheric Trust Litigation Strategy, Kacie Couch

William & Mary Environmental Law and Policy Review

The cliffs of California are dissolving.2 Glaciers in Colorado and Montana are dissolving.3 Islands in Louisiana and Alaska are dissolving.4 America as we know it is dissolving; twenty-one youth plaintiffs that face a future with less liberty and independence than generations before them claim that federal government inaction in the face of climate change is to blame.5 Those plaintiffs, in the landmark case Juliana v. United States, sought judicial declaration of a federal public trust and substantive due process right to a stable climate system.6 In proceedings, Judge Anne Aiken of the District Court of Oregon declared a newly …

Reflections On Rural Resilience: As The Climate Changes, Will Rural Areas Become The Urban Backyard?, Elizabeth Andrews, Jesse Reiblich

William & Mary Environmental Law and Policy Review

This Article discusses the impacts of climate change on rural communities, including how they can exacerbate current economic and environmental challenges there, such as increasing absentee landownership and nonexistent or failing septic systems. It focuses on the accompanying policy challenges in addressing these issues with an emphasis on efforts to address the needs of socially vulnerable communities. Additionally, it proposes key policy recommendations, including funding, planning for sea level rise, public education and communication, and addressing rural needs in the Chesapeake Bay Total Maximum Daily Load (“TMDL”) process.