Law Commons^™

Planning For The "New Normal": Using Build One Portsmouth To Address Flood Resilience, Alison Wrynn, Sarah Simonetti

Virginia Coastal Policy Center

Sea level rise, recurrent flooding, and increasingly severe storms are ever-present threats to coastal Virginia. As climate change becomes the “new normal”, creative solutions are needed to adapt to these stark realities.

In response to these climate-related challenges, Governor Ralph Northam issued Executive Order 24, “Increasing Virginia’s Resilience to Sea Level Rise and Natural Hazards,” on November 2, 2018. The Executive Order designated the Secretary of Natural Resources as the Chief Resilience Officer of the Commonwealth, and set forth various actions intended to increase statewide resilience to natural hazards and extreme weather. Later that same month, Portsmouth released its 2018 …

The Creation Of A Virginia Coastal Resilience Development Authority: An Inventory Of State Coastal Resilience Authorities And Funding Mechanisms To Help Guide Virginia, Kristi Gennette

Virginia Coastal Policy Center

In June 2018, Governor Ralph Northam signed legislation creating a cabinet-level position, the Special Assistant to the Governor for Coastal Adaptation and Protection, to lead efforts in addressing coastal resilience and flooding mitigation in Virginia. The following November, Governor Northam signed Executive Order No. 24, which directed the state to increase statewide resilience to natural hazards and extreme weather. This Executive Order directed Virginia to develop a Coastal Resilience Master Plan (CRMP). In order to implement the projects proposed in the CRMP, the Commonwealth will need funding. This paper provides an inventory of various states’ programs for funding coastal resilience …

Achieving The Goals Of The Value-Based Purchasing Program: Defining A Standard For External Data Use, Svetlana Makoviy

Student Award Winning Papers

In our society, artificial intelligence technology has permeated through every aspect of human life. By the end of 2019, more than 60 million Americans will use some kind of smartwatch, whether a Fitbit or an Apple Watch as a part of their daily routine. Further, over 58% of people currently use a healthcare-related mobile application, such as MyFitnessPal or Nike+ Running. Health and fitness application usage increased by over 330% in the last three years. Unsurprisingly, healthcare-related data is one of the fastest growing and financially valuable data pools in the country, if not worldwide. The volume of data generated …

The Challenge Of Convincing Ethical Prosecutors That Their Profession Has A Brady Problem, Adam M. Gershowitz

Faculty Publications

In recent decades, both the media and legal scholars have documented the widespread problem of prosecutors failing to disclose favorable evidence to the defense – so called Brady violations. Despite all of this documentation however, many ethical prosecutors reject the notion that the criminal justice system has a Brady problem. These prosecutors – ethical lawyers who themselves have not been accused of misconduct – believe that the scope of the Brady problem is exaggerated. Why do ethical prosecutors downplay the evidence that some of their colleagues have committed serious errors?

This essay, in honor of Professor Bennett Gershman, points to …

Civil Justice Initiative: Evaluation Of The Civil Justice Initiative Pilot Project (Cjipp), Lydia Hamblin, Paula Hannaford-Agor

Faculty Publications

Previous reform efforts have not fully addressed the underlying issues facing civil litigation. In response, the Civil Justice Improvements (CJI) Committee produced thirteen recommendations to do just that. To test the effectiveness of these recommendations, demonstration pilot projects were funded by the State Justice Institute to empirically test their effects on civil case processing and litigation.

In 2016 the Circuit Civil Division of the 11th Judicial Circuit Court of Florida, Miami-Dade County, implemented one of the first demonstration projects: the CJI Pilot Project (CJIPP). The focus of the evaluation would be on Recommendation 7, which describes the civil case management …

Mandatory Multilateralism, Evan J. Criddle, Evan Fox-Decent

Faculty Publications

This Article challenges the conventional wisdom that states are always free to choose whether to participate in multilateral regimes. International law often mandates multilateralism to ensure that state laws and practices are compatible with sovereign equality and joint stewardship. The Article maps mandatory multilateralism's domain, defines its requirements, and examines its application to three controversies: the South China Sea dispute, the United States' withdrawal from the 2015 Paris Agreement, and Bolivia's case against Chile in the International Court of Justice.

How Do We Know If Prosecutors Are Doing A Good Job?, Jeffrey Bellin

Popular Media

No abstract provided.

A Cleaner, Crispr Constitution: Germline Editing And Fundamental Rights, Andrew Cunningham

William & Mary Bill of Rights Journal

No abstract provided.

The Case For A Mandatory Renewable Portfolio Standard In Virginia: A Case Study Examining Virginia’S Potential For A Mandatory Renewable Portfolio Standard By Comparing Virginia To Maryland And North Carolina, Rebecca Wescott

William & Mary Environmental Law and Policy Review

Since the early 1980s, states have utilized Renewable Energy Portfolio Standards (“RPSs”) as policy mechanisms to “promote broader investment in renewable energy without requiring passage of a comprehensive energy policy measure that includes a pricing mechanism for carbon.” RPS policies can be drafted in one of two ways: (1) as a mandatory RPS, a legal mandate on what percentage of a state’s power portfolio must come from specific eligible renewable energy sources by a specific date in the future, or (2) as a non-binding or voluntary RPS, a policy goal that recommends that a certain percentage of a state’s power …

How Science Has Influenced, But Should Now Determine, Environmental Policy, Jan G. Laitos

William & Mary Environmental Law and Policy Review

This is an article about science and environmental law. More specifically, it is an article about two different versions of science, and how each has affected environmental law and the development of environmental policy. The emergence of science-driven environmental law has significantly affected how humans view and respond to the natural world that makes up the biosphere, which is the thin envelope surrounding the Earth that permits the human species to exist. This Article argues that humans, and law-makers, should embrace a different role for science. Instead of science answering “what is” questions, it should also explain the universal laws …

Taking On Water: Winters, Necessity And The Riparian East, Jacqueline Goodrum

William & Mary Environmental Law and Policy Review

In the eastern United States, a natural abundance of water has historically satisfied regional water needs. However, rapid population growth and expansive development, as well as changing climate conditions, threaten to deplete and diminish regional water resources. Riparianism, the reigning water rights regime in the American East, is insufficient to address concerns arising from these emerging forces because it assumes sufficient water will be available for all users. Recent interstate disputes, such as Virginia v. Maryland and Florida v. Georgia, highlight a new hydrological reality characterized by not only increased consumption of eastern water resources, but also by increased …

Galactic Preservation And Beyond: A Framework For Protecting Cultural, Natural, And Scientific Heritage In Space, Matthew Rosendahl

William & Mary Environmental Law and Policy Review

In July 2017, Moon Express, a private spaceflight company, announced plans to build an outpost on the South Pole of the Moon by 2020. The goal? To mine the Moon for minerals and water that could then be sold for profit. Indeed, the Moon has been found to possess resources with lucrative uses, both in space and here on Earth. The potential for huge rewards has incentivized several private and governmental actors to launch planned expeditions to the Moon, with China becoming the third nation to land a spacecraft there in 2013. Both China and India have since announced plans …

International Law Instruments To Address The Plastic Soup, Luisa Cortat Simonetti Goncalves, Michael Gerbert Faure

William & Mary Environmental Law and Policy Review

The problem of plastic pollution in the oceans has been increasingly evident after 1997, when the great concentrations of plastics in the oceans were initially publicized. Still, there is a substantial lack of scientific data and research about the sources of plastic pollution, destinations and consequences to nature and human life. The only certainty is that the amount of plastic that ends up in the ocean is alarming and likely will not decrease anytime soon because of its durability and large range of use. Estimates show that, each year, at least 8 million tons of plastics leak into the ocean …

When All Else Fails, Look To The Courts: Using Hybrid Tribunals To Build Judicial Capacity And End Environmental Destruction In Post-Conflict Countries, Reeana Keenen

William & Mary Environmental Law and Policy Review

A news report from April 2017 that compiled data from South Sudan, Nigeria, Somalia, and Yemen stated that each country is either experiencing famine or on the brink. These countries and their link to famine is not coincidental: each country is either in the midst of current armed conflict or trying to piece itself back together following an armed conflict. For example, in South Sudan, violent clashes between South Sudan’s army and a rebel militia resulted in the “razing and burning [of] entire villages.”

Famine and other environmental harms are common in pre- and post-conflict countries, often worsened by the …

Scrutinizing Anticompetitive State Regulations Through Constitutional And Antitrust Lenses, Daniel A. Crane

William & Mary Law Review

State and local regulations that anticompetitively favor certain producers to the detriment of consumers are a pervasive problem in our economy. Their existence is explicable by a variety of structural features—including asymmetry between consumer and producer interests, cost externalization, and institutional and political factors entrenching incumbent technologies. Formulating legal tools to combat such economic parochialism is challenging in the post-Lochner world, where any move toward heightened judicial review of economic regulation poses the perceived threat of a return to economic substantive due process. This Article considers and compares two potential tools for reviewing such regulations—a constitutional principle against anticompetitive parochialism …

Religious Freedom Through Market Freedom: The Sherman Act And The Marketplace For Religion, Barak D. Richman

William & Mary Law Review

In prior work, I examined certain restraints by private religious organizations and concluded that the First Amendment did not immunize these organizations from antitrust liability. In short, the First Amendment did not preempt enforcing the Sherman Act against certain religious monopolies or cartels.

This Article offers a stronger argument: First Amendment values demand antitrust enforcement. Because American religious freedoms, enshrined in the Constitution and reflected in American history, are quintessentially exercised when decentralized communities create their own religious expression, the First Amendment’s religion clauses are best exemplified by a proverbial marketplace for religions. Any effort to stifle a market organization …

The Present New Antitrust Era, Barak Orbach

William & Mary Law Review

Antitrust scholars frequently refer to an “ideological pendulum” to describe the rise and fall of trends in the evolution of antitrust law. This pendulum arguably swings between fairness and laissez-faire visions, while a technocracy vision moderates its motion. Mapping key phases in the evolution of antitrust law, I argue that a new antitrust era with distinctive characteristics has been forming in recent years.

The present new antitrust era is a product of growing tensions and contradictions among policy prescriptions. After several decades in which antitrust was a specialized field that drew little public attention, in the aftermath of the Great …

Parker V. Brown, The Eleventh Amendment, And Anticompetitive State Regulation, William H. Page, John E. Lopatka

William & Mary Law Review

The Parker v. Brown (or “state action”) doctrine and the Eleventh Amendment of the Constitution impose different limits on antitrust suits challenging anticompetitive state regulation. The Supreme Court has developed these two versions of state sovereign immunity separately, and lower courts usually apply the immunities independently of each other (even in the same cases) without explaining their relationship. Nevertheless, the Court has derived the two immunities from the same principle of sovereign immunity, so it is worth considering why and how they differ, and what the consequences of the differences are for antitrust policy. The state action immunity is based …

Reinvigorating Criminal Antitrust?, D. Daniel Sokol

William & Mary Law Review

Contemporary rhetoric surrounding antitrust in an age of populism has potential implications with regard to criminal antitrust enforcement. In areas such as resale price maintenance, monopolization, and Robinson-Patman violations, antitrust criminalization remains the law on the books. Antitrust populists and traditional antitrust thinkers who embrace a singular economic goal of antitrust push to enforce antitrust law that is already “on the books.” A natural extension of enforcement by the antitrust populists would be to advocate the use of criminal sanctions, outside of collusion, for various antitrust violations which are “on the books” but have not been used in over a …

Accommodating Competition: Harmonizing National Constitutional And Antitrust Commitments, Jonathan B. Baker

William & Mary Law Review

This Article shows how the norm supporting governmental action to protect and foster competitive markets was harmonized with economic rights to contract and property during the 19th century, and with the development of the social safety net during the 20th century. It explains why the Constitution, as understood today, does not check the erosion of the entrenched but threatened national commitment to assuring competitive markets.

Antitrust As Speech Control, Hillary Greene, Dennis A. Yao

William & Mary Law Review

Antitrust law, at times, dictates who, when, and about what people can and cannot speak. It would seem then that the First Amendment might have something to say about those constraints. And it does, though perhaps less directly and to a lesser degree than one might expect. This Article examines the interface between those regimes while recasting antitrust thinking in terms of speech control.

Our review of the antitrust-First Amendment legal landscape focuses on the role of speech control. It reveals that while First Amendment issues are explicitly addressed relatively infrequently within antitrust decisions that is, in part, because certain …

Yielding To The Necessities Of A Great Public Industry: Denial And Concealment Of The Harmful Health Effects Of Coal Mining, Caitlyn Greene, Patrick Charles Mcginley

William & Mary Environmental Law and Policy Review

In the mid-nineteenth century, coal mined in Central Appalachia began to flow into industrial markets. Those mines and the coal they produced provided jobs, put food on family tables in coalfield households, and even provided housing for hundreds of thousands of coal miners and their families. The bounty from America’s expanding coalfields fueled the Industrial Revolution and powered the nation’s steel mills, factories,steamboats, and railroads. It powered America’s defense through two World Wars and later military conflicts. Coal-fired power plants generated more than half of the electricity used in the United States in the latter quarter of the twentieth century. …

The (Limited) Constitutional Right To Compete In An Occupation, Rebecca Haw Allensworth

William & Mary Law Review

Is there a constitutional right to compete in an occupation? The “right to earn a living” movement, gaining steam in policy circles and winning some battles in the lower courts, says so. Advocates for this right say that the right to compete in an occupation stands on equal footing with our most sacred constitutional rights such as the right to be free from racial discrimination. This Article takes a different view, arguing that while there is a limited constitutional right to compete in an occupation, it is—and should be—weaker than these advocates claim. Some state licensing laws run afoul of …

“Competition Policy In Its Broadest Sense:” Michael Pertschuk’S Chairmanship Of The Federal Trade Commission 1977-1981, William E. Kovacic

William & Mary Law Review

In the late 1960s and through the 1970s, the Federal Trade Commission (FTC) undertook an ambitious program of reforms. Among other measures, the agency expanded the focus of antitrust enforcement to address economic concentration, including the use of Section 5 of the FTC Act to restructure dominant firms and oligopolies. In many ways Michael Pertschuk, who chaired the agency from 1977 to 1981, became the symbol of the FTC’s efforts to stretch the boundaries of antitrust policy—to pursue a conception of “competition policy in its broadest sense.” Despite a number of valuable accomplishments, the FTC achieved relatively few litigation successes, …

Antitrust And The Politics Of State Action, Thomas B. Nachbar

William & Mary Law Review

In North Carolina State Board of Dental Examiners, the Court refused to exempt the board from the second element of Parker immunity—active supervision by the state—because the Board was made up largely of “active market participants.” This Article argues that the “active market participant” rule laid out in North Carolina State Board, while intuitively appealing, ignores important political values represented by antitrust law, values most evident in the context of state action immunity. By focusing on the potential market harm from self-interested regulators, the Court ignored a series of political harms inherent in the structure of the North …

The Bemba Appeals Chamber Judgment: Impunity For Sexual And Gender-Based Crimes?, Susana Sácouto, Patricia Viseur Sellers

William & Mary Bill of Rights Journal

No abstract provided.

Human Rights In International Criminal Proceedings—The Impact Of The Judgment Of The Kosovo Specialist Chambers Of 26 April 2017, Göran Sluiter

William & Mary Bill of Rights Journal

By their very nature, international criminal tribunals will in their operation impact individual rights, such as the right to liberty and the right to a fair trial. Without a constitution and without a history in developing due process norms, international criminal tribunals have to provide for instant incorporation of human rights in their respective criminal proceedings.

However, the circumstances under which international criminal tribunals are established are often complex, while at the same time their creation is considered to be a matter of urgency. As a result, there may not always be sufficient attention to human rights law’s position and …

Understanding Crime Gravity: Exploring The Views Of International Criminal Law Experts, Stuart Ford

William & Mary Bill of Rights Journal

No abstract provided.

Common Law Evidence And The Common Law Of Human Rights: Towards A Harmonic Convergence?, John D. Jackson

William & Mary Bill of Rights Journal

This Article considers the impact which European Human Rights Law has made upon the common law rules of evidence with reference to the approach the European Court of Human Rights (ECtHR) has adopted towards exclusionary rules of evidence. Particular attention will be given to rules that have been developed by the ECtHR in relation to the right to counsel during police questioning (the so-called “Salduz” doctrine) and the right to examine witnesses (the so-called “sole or decisive” evidence rule). The Article argues that the effect of these rules has encouraged common law judges to engage more holistically with the effect …

Charter Cities, Lan Cao

William & Mary Bill of Rights Journal

No abstract provided.