Law Commons^™

"America's Paradise": The Enduring Costs Of Imperialism And Colonial Rule--A Case Study Of The U.S. Virgin Islands, Diamond C. Ash

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

As the United States prepared to enter World War I, it secured another strategic territorial holding in the Caribbean. Six days before declaring war on Germany, the United States purchased the Virgin Islands (USVI) from Denmark—not for economic development or the welfare of its people, but as a military asset. St. Thomas, St. Croix, and St. John became a strategic outpost for naval dominance and national security.

Like other unincorporated U.S. territories, the USVI’s governance was shaped by imperial ambitions and reinforced through legal structures that preserved federal dominance. In practice, this created a system of colonial rule in which …

Table Of Contents (V. 50, No. 1)

William & Mary Environmental Law and Policy Review

No abstract provided.

Subsistence As Resistance: Reconceptualizing The Theory Of Progressive Property To Incubate Resistance To Consumerism, D.S. Pensley

William & Mary Environmental Law and Policy Review

This Article reconceptualizes the theory of progressive property by juxtaposing legal theory with the empirical study of a subsistence economy in the U.S. Subarctic. Progressive property holds that owners are bound by obligations to non-owners as a means to achieve human flourishing. The theory is constrained by the primacy of private property in Western thought, and it also lacks the ecological ethic required for sustainability. Drawing from my fieldwork, I suggest that human flourishing must additionally incubate resistance to consumerism.

Federal statute, 16 U.S.C. § 3113, defines subsistence as “the customary and traditional uses by rural Alaska residents of wild, …

Let's Bee Pragmatic: The Economic Case For Neonicotinoid Regulation In Conservative States, Annie Rosenstein

William & Mary Environmental Law and Policy Review

The importance of bees in our ecosystem and to our food system in the United States cannot be overstated. In fact, 35% of global crop production depends on bees and other pollinating insects. Pollinators not only influence the production of many foods that we hold dear and rely on, such as apples, chocolate, potatoes, and coffee, but also influence the quality of these products.

Currently, the most insidious threat against bees in the United States is neonicotinoid pesticides (neonics). While neonics are effective at killing the target populations of beetles, aphids, and flies, they are equally effective at killing pollinators, …

Environmental Bankers: States Are Billing Fossil Fuel Companies For Extreme Weather Disasters, Kelly A. Adam

William & Mary Environmental Law and Policy Review

For decades, common law has been the pathway to remediation for environmental tragedies. Victims of traditional environmental harms can pursue justice through legal challenges like nuisance, negligence, and violations of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). However, climate change–induced natural disasters have led to the normalization of the “Act of God” exception; a policy provision commonly used in insurance law that excludes coverage for damage caused by unforeseeable natural disasters. Even so, real cities suffer the consequences of the real harm, whether insurance accepts it or not; so, who bears the burden of funding the recovery?

Maryland, …

Pleasure & Pain In Intellectual Property, Andrew Gilden

William & Mary Law Review

Intellectual property produces pleasure. IP laws incentivize investment in popular culture, helping to ensure the viability of entertainment industries and the steady production of our favorite shows, cherished brands, and beloved celebrities. Across IP-heavy industries, creators cite the joy of writing, composing, coding, and experimenting as a motivation for countless hours in the office, studio, or lab. Nonetheless, in a broad range of settings, and across several areas of IP, courts have responded with hostility to personal accounts of pleasure in IP disputes. When a defendant admits to using IP because they are fans of the plaintiff, or because they …

Easing The Limits Of The Statute Of Limitations: A Path To A More Equitable Idea, Sarah Shepley

William & Mary Law Review

Part I of this Note discusses the special education framework, outlining the rights and obligations of parents and school systems created by the Individuals with Disabilities in Education Act (IDEA). Part II evaluates the IDEA’s statute of limitations as the gatekeeping instrument of the due process complaint system and discusses the Third Circuit’s reconciliation of the seemingly conflicting statutory provisions of the IDEA in G.L. v. Ligonier Valley School District Authority. Part III situates the implications of the Ligonier decision within the broader special education landscape, discussing other courts’ adoption of or deviations from the Third Circuit’s interpretation, interpretations …

Attribution As Architecture In The Digital Age, Laura A. Heymann

Faculty Publications

As technology changes, one thing remains constant: human creators seem to care about attribution, whether as creators or as audience members. Current U.S. law lacks the means for many creators to effectively address attributional interests, and experience has shown that top-down, imposed technological solutions can fail to gain the necessary buy-in and adoption. The best approach, examples suggest, is for platforms to think of attribution as part of the architecture of their systems, but to take their cues from user-developed, individualized solutions, which will not only be more responsive to user interests but also allow adaptation as interests change and …

Relief And Its Costs: The Need For A Congressional Response To The Aftermath Of Harrington V. Purdue Pharma, Emma Skeen

William & Mary Law Review

This Note explores the fallout of the Harrington v. Purdue Pharma decision and the uncertainty it lends to the future of bankruptcy plans and third-party releases. Specifically, it proposes potential congressional solutions that can pave a path forward for parties to seek relief for the harms they have suffered under the actions of corporations and their leaders. Part I provides background information on the use of nonconsensual third-party releases in bankruptcy cases and their controversial nature. Part II analyzes the Supreme Court’s settling of that controversy in Harrington and the bases that it relied on in doing so. Part III …

Domestic Military Deployments After Trump V. United States, Chris Mirasola

William & Mary Law Review

The current legal regime governing domestic military deployments was, largely, born of the Civil War. While conflict was ongoing, Congress enacted what are now a pair of statutes criminalizing military interference with federal elections. And as a coda to Reconstruction, Congress criminalized using the military as a civilian law enforcement force. Over the past 160 years, successive Congresses and Presidents have steadily chipped away at these crucial criminal-law protections. In 2024, the Supreme Court’s decision in Trump v. United States further undermined the limitations that remained.

In Trump, the Supreme Court held that Presidents enjoy, at minimum, a presumption …

2025 Supreme Court Preview Digital Notebook, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Brief Of Amici Curiae Intellectual Property Scholars In Support Of Petitioners, Laura A. Heymann, Alfred C. Yen

Briefs

No abstract provided.

Brigham-Kanner Property Rights Journal, Volume 14, William & Mary Law School

Brigham-Kanner Property Rights Journal

Gideon Kanner Remembrance

September 12-13, 2024

Restructuring Property: A Tribute to Lee Fennell

Background Principles, General Law, & Constitutional Property

Roundtable: Unfinished Business & Emerging Issues

Property Rights and Housing In Crisis

Government Trespass: The Fourth Amendment "Open Fields" Doctrine Turns 100

Artificial Intelligence And The Law: A Discussion And Selections From The Collection, Wolf Law Library, William & Mary Law School

Library Book Displays

On display in the Wolf Law Library August 2025 - January 2026.

Senator Fulbright Had A Vision. His Successors Must See It Through., Christie S. Warren

Popular Media

No abstract provided.

Securing Americans' Genetic Information: Privacy And National Security Concerns Surrounding 23andme's Bankruptcy Sale. Hearing Before The House Committee On Oversight And Government Reform, United States House Of Representatives, 119th Congress, First Session., Margaret Hu

Congressional Testimony

No abstract provided.

Facial Recognition Ai, Margaret Hu

Faculty Publications

The integration of algorithmic decisionmaking and artificial intelligence (“AI”) into facial recognition technology poses new, unprecedented risks to privacy and individual autonomy rights, particularly in urban settings. The murder of Brian Thompson, CEO of UnitedHealthcare, in New York City on December 4, 2024, provides a timely case study to examine the deployment of facial recognition systems by the New York Police Department and other law enforcement agencies to identify the suspect. New York City deploys some of the most sophisticated surveillance architecture in the nation, put into place following the terrorist attacks of September 11, 2001. This Article explores the …

Executive Watch: Zick On Executive Orders And Official Orthodoxies, Timothy Zick

Popular Media

During his first term as president, Donald Trump signaled that he was not committed to pluralism and expressive liberty when it came to matters like patriotism, public protest, and other forms of dissent. During his second term, Trump has issued multiple executive orders that attempt to impose official orthodoxies or understandings regarding race, gender, patriotism, and other subjects.

As we have seen, these edicts are not merely symbolic. The executive orders call for agency actions and criminal investigations, and place hundreds of millions of dollars in federal funding at risk. The orders have affected what universities teach, which immigrants can …

The First Amendment And The Commencement Provocateur, Duncan Hosie

William & Mary Bill of Rights Journal

This Article explores an untheorized area of First Amendment doctrine: students’ graduation speeches at public or private universities that embrace free speech principles, either by state statute, state constitutional law, or internal policy. Responding to recent graduation speech controversies, it develops a two-tier theory that reconciles a multiplicity of values, including students’ expressive interests, universities’ institutional interests in curating commencement ceremonies and preventing reputational damage and political reprisals, and the interests of captive audiences in avoiding speech they deem offensive or profane. The Article challenges the prevailing view that university students’ graduation speeches implicate individual First Amendment rights. It develops …

But For A Free Press: A Response To Press Freedom Skeptics, Patrick J. Charles, Kevin Francis O'Neill

William & Mary Bill of Rights Journal

This Article is divided into three Parts. Part I will outline the history-in-law case for why the historical record sufficiently supports recognizing distinct constitutional press freedoms. Part II then provides a history-in-law response to some of the most common arguments made by press freedom skeptics as to why distinct constitutional press freedoms should not be recognized by the courts. Lastly, Part III makes the case for why the recognition of distinct constitutional press freedoms should become a jurisprudential reality and provides a roadmap to accomplish this.

This abstract has been taken from the authors' introduction.

Second Amendment Principles, Jamie G. Mcwilliam

William & Mary Bill of Rights Journal

In United States v. Rahimi, the Supreme Court explained that firearm regulations “must comport with the principles underlying the Second Amendment.” This Article examines what those principles are, how to derive them, and how to apply them in concrete cases. It begins with the Second Amendment’s core principle of defense of self and community, which traces its lineage back to classical thinkers like Aquinas and Grotius. The tradition of firearm regulation that surrounded the adoption of the Second Amendment depended on this fundamental principle. But it also developed subsidiary principles that implement the defense principle in specific ways. This …

Understanding Dobbs V. Jackson Women's Health Organization: How The Modern Supreme Court Broke From Tradition And Changed The Original Meaning Of Due Process, Matthew W. Lunder

William & Mary Bill of Rights Journal

What follows here describes and criticizes the modern liberal and conservative approaches to substantive due process. Part I shows how substantive due process came about in the mid-twentieth century as the union of two extant doctrines: incorporation and fundamental rights. Part II then describes how modern conservatism used the doctrine to arrive at the deeply rooted-in-history-and-tradition test and shows the deliberate reconfiguration of the jurisprudence during the latter twentieth century into the novel patchwork of the modern-conservative method applied in Dobbs. Part III offers a contrast, describing and explaining the traditional due-process analysis of medieval origin and the concept of …

The Bare-Majority Requirement Of The Delaware Judiciary And Its Unfortunate Violation Of The First Amendment, Tyler Mayhew

William & Mary Bill of Rights Journal

This Note will attempt to remedy the circuit split on the issue of whether judges are policymakers for purposes of the First Amendment, and if they are not—as this Note concludes—whether the Delaware Constitution is in violation of the First Amendment through its major-party and bare-majority requirement.

First, this Note will analyze the development of the only challenge to article IV, section 3 of the Delaware Constitution as it proceeded from the U.S. District Court for the District of Delaware to the U.S. Supreme Court where it was thrown out on standing. Second, this Note will argue that judges are …

Hunting For Meaningful Boundaries: Virginia's Dog Retrieval Statute And Defining Per Se Regulatory Takings Under Cedar Point, Mason Miller

William & Mary Bill of Rights Journal

This Note will begin with a summary of the [Cedar Point Nursery v. Hassid] decision. Next, it will provide an overview of Virginia’s dog retrieval statute and discuss a recent case challenging the same. The Note will then analyze the statute by applying the Cedar Point standard, with special attention given to the exceptions, to determine if the law constitutes a per se taking. Finally, the Note will conclude by exploring some implications of the analysis, again emphasizing the effect of the amorphous exceptions.

This abstract has been taken from the author's introduction.

A Fate Worse Than Death: The Perpetuation Of Ableism Through California's "End Of Life Option Act", Skyler Powell

William & Mary Bill of Rights Journal

This Note discusses why physician-assisted suicide is inconsistent with California’s laws and how it should be remedied. First, Part I examines the history of physician-assisted suicide in the United States; the federal and Californian stances on the issue; how the EOLOA [End of Life Option Act] works today; and California’s stance on suicide prevention. Next, Part II looks at how California’s Equal Protection Clause and Civil Rights laws apply to individuals eligible for aid-in-dying medication, then analyzes a recent lawsuit brought against the state of California by disability advocacy groups regarding the EOLOA. Part III considers California and supporters’ interests …

The Next Generation Of Free Expression Scholarship: A Very Short Manifesto (In Memory Of Fred Schauer), Mark Tushnet

William & Mary Bill of Rights Journal

This Manifesto begins with a discussion of the accomplishments of the prior generation of free expression scholarship. The core of the Manifesto starts with a description of the idea of epistemic authority and draws upon Leiter’s analysis to show its importance in free expression theory. It emphasizes, with Leiter, that epistemic authority is relational: between and among epistemic authorities, and between such authorities and “ordinary” citizens (that is, those who aren’t near the core of an epistemic community that, as a collective, defines the community’s core and boundaries).

That discussion is followed by a description of challenges to the idea …

Taking Back The Takings Clause: The Case For Compensating Innocent Property Owners Caught In The Crossfire Of Police Activity, Kathleen Collins

William & Mary Law Review

Part I of this Note will provide an overview of the history of the Takings Clause, the role of the police power in takings jurisprudence, and the necessity exception to takings. Specifically, Part I will demonstrate that (1) the gravity of physical government intrusions has led the Supreme Court to consistently treat such intrusions as per se takings, (2) any distinction between eminent domain and the police power exists in the context of regulatory takings, and (3) the necessity exception rests on a shaky foundation as a common law tort doctrine. Part II will refute Lech’s conclusion that law …

Shaq, Ripple, And The Future Of Crypto Regulation, James C. Spindler

William & Mary Law Review

Crypto is at a regulatory crossroads. The Securities and Exchange Commission (SEC) and other regulators have taken a hard line on enforcing traditional regulatory requirements that would severely limit crypto offering activities. At the same time, crypto advocates seek preferential treatment, under the guise of “regulatory clarity,” that would allow them to bypass much of the applicable regulatory regimes. After a halt to legislative activities, brought on by the FTX implosion and ensuing crypto winter, the battle for crypto’s future is currently in the courts. Two pending, bellwether cases—the class action against Shaquille O’Neal and other celebrity spokesmen for FTX, …

Bostock And The Limits Of Textualism: A Doctrinal Structuralist Approach, Martin Katz

William & Mary Law Review

In Bostock v. Clayton County, the Supreme Court held that Title VII prohibits discrimination based on sexual orientation or gender identity. This result, the majority claimed, was required by the interpretive theory called textualism. But textualist Justices in the dissent vehemently disagreed. This split, and the controversy that has followed it, has had two consequences. First, it added fuel to the ongoing debate about the value of textualism. Second, it opened the door for lower courts to decline to apply Bostock to similar antidiscrimination laws, such as Title IX in education or the Equal Protection Clause.

This Article argues …

Procedural Political Economy, Luke P. Norris

William & Mary Law Review

When the Federal Rules of Civil Procedure came into being in 1938, a broad political economy discourse was driving significant legal and policy reform efforts. Legal scholars, economists, political leaders, and others placed questions of economic power and their relationship to democracy at the center of those reform efforts, honing and developing a political economy tradition that is a forebearer to today’s law-and-political economy (LPE) approach. Both then and today, the relationship of civil procedure to these trends has not been fully mined. This Article tells a vital part of that story, tracing the federal civil procedure system’s political economy …