Law Commons^™

Law And Equity On Appeal, Aaron-Andrew P. Bruhl

Faculty Publications

Most lawyers know that the Federal Rules of Civil Procedure merged the divergent trial procedures of the common law and of equity, but fewer are familiar with the development of federal appellate procedure. Here too there is a story of the merger of two distinct systems. At common law, a reviewing court examined the record for errors of law after the final trial judgment. In the equity tradition, an appeal was a rehearing of the law and the facts that aimed at achieving justice and did not need to await a final judgment. Unlike the story of federal trial procedure, …

Follow The Bloody Brick Road: Bleeding Kansas And The Emancipation Proclamation, Margaret Hu

William & Mary Bill of Rights Journal

To help illuminate Balkin’s project of Memory and Authority, this brief Essay considers a slice of American memory from Kansas’ historical archives and other primary sources, and examines its unique role in the Civil War. Specifically, it excavates the influence of Kansas’ leaders as advisors to President Abraham Lincoln. Prior to and during the Civil War, Lincoln relied upon the guidance of senior leaders from Kansas on matters ranging from guarding the White House, war strategies, the recruitment of former enslaved persons to the war effort, and the issuance of the Emancipation Proclamation as a part of an effective …

The Supreme Court Sack[Ler]S Third-Party Releases In Chapter 11: Should Congress Seize The Cudgel?, Lawrence Ponoroff

William & Mary Law Review Online

On June 27, 2024, the Supreme Court issued its ruling in Harrington v. Purdue Pharma L.P., holding that nonconsensual third-party releases included in a Chapter 11 plan of reorganization, other than one relating to asbestos liability claims, were impermissible under the federal Bankruptcy Code. The releases at issue would have immunized members of the Sackler family, who controlled Purdue Pharma, from liability in connection with the company’s role in the opioid crisis. The Sacklers represent the epitome of the unpopular litigant, so no tears need be shed for them. In a sense, they just received a dose of their …

A Threshold Test For Fed Activism, John Crawford

William & Mary Business Law Review

Recent years have witnessed robust academic and policy debates about the scope of issues the U.S. central bank, the Federal Reserve (the Fed), should attempt to tackle. Some propose expanding the Fed’s remit to help address societal problems like racial inequality and climate change, either through a broader interpretation of the Fed’s current mandate, or through new legislation explicitly delegating new responsibilities to the Fed. Others argue that the Fed should “stay in its lane,” with a particular focus on ensuring democratic accountability and a tighter fit between what the Fed does and what it is statutorily authorized to do. …

Failing To See What's In Front Of Our Eyes: The Effect Of Cognitive Errors On Corporate Scandals, Nancy B. Rapoport

William & Mary Business Law Review

Why do we believe flim-flam artists so readily, especially in the business and commercial realm? This Article explores four reallife versions of “The Emperor’s New Clothes” fable—FTX, WeWork, Theranos, and a former bankruptcy judge’s hidden romance— and asks why people bought into the hype. Where were the warning signs, and how might we better spot those signs in the future?

Breaking The Chains: Lessons Learned From Anti-Slave Labor Laws And Their Applicability To Proposed Expansions To The Uflpa, Kaitlin Danielle Chang

William & Mary Business Law Review

With global trade growing every day and more products being imported from foreign countries, responsible sourcing of products is more important now than ever. Irresponsible importation of goods can lead to countries like the United States supporting human rights abuses abroad by allowing goods made with forced labor into their domestic markets. The Uyghur Forced Labor Protection Act (UFLPA) has empowered the United States’ Customs and Border Protection to hinder the flow of goods made with Uyghur forced labor into the United States, but it has not been completely successful in preventing these goods from being sold in the United …

Provenance Researchers Wanted: How & Why The Fiduciary Duty Of Care For Museum Trustees Should Be Expanded, Gracie O. Moore

William & Mary Business Law Review

As non-profit directors, museum trustees owe the fiduciary duties of care and loyalty to their institutions. The museum community has established that provenance research is crucial to the ethical operation of museums; however, employing a full-time provenance researcher has not been considered as falling under the duty of care. This Note argues that the fiduciary duty of care for museum trustees should be interpreted to include the employment of a full-time provenance researcher or the establishment of a full-time provenance research department. First, employing a full-time provenance researcher can prevent potential lawsuits against museums because they have the proper skills, …

Justice On The High Seas: Nonpecuniary Damages And The Death On The High Seas Act, Casey Rockwell, Chad Marzen

William & Mary Business Law Review

The COVID-19 pandemic has brought forth many discussions on liability issues. The Death on the High Seas Act currently prohibits recovery of “loss of society” or “loss of consortium” nonpecuniary damages. This Article contends that in the wake of the COVID-19 pandemic, with the harsh results of the application of DOHSA in COVID-19 cases, Congress has an opportunity to amend DOHSA. Allowing recovery of nonpecuniary damages in DOHSA cruise line cases, currently advocated for by a bipartisan group of lawmakers, will provide consistency and fairness to DOHSA.

The Consequences And Constitutionality Of Training Police To Blame Victims, Margareth Etienne, Richard H. Mcadams

William & Mary Law Review

A common technique in American interrogations is “moral minimization,” in which investigators excuse or justify the suspect’s criminal behavior on moral grounds. A surprising type of moral minimization is explicit victim-blaming, which includes blaming the victim by endorsing negative stereotypes on the basis of gender, race, religion, or sexual orientation, what we call victim-blaming-bystereotype. No one has previously considered the policy wisdom or constitutionality of this technique. We explore the unintended consequences. One cost is the secondary victimization of those who suffer from crime, especially when they discover how detectives have disparaged them. The second is the effect on the …

Constitutional Federalism And The Nature Of The Union, Anthony J. Bellia Jr., Bradford R. Clark

William & Mary Law Review

Federalism is an essential feature of the Constitution’s design and structure, but the Constitution does not spell out every respective authority of the federal government and the States in precise detail. This omission has led some observers to embrace broad—if not unlimited—federal power and reject certain longstanding federalism doctrines—such as state sovereign immunity, the anti-commandeering doctrine, and the equal sovereignty of the States. The objection to such doctrines is that the Constitution does not affirmatively grant States these sovereign rights and powers. This charge overlooks long-forgotten background context essential to faithful interpretation of the Constitution. The former British Colonies in …

A Transformative Standard For Transformative Times: Protecting Student-Athlete Speech In The Era Of Name, Image, And Likeness, Kyle Saxon

William & Mary Law Review

As an entirely new and developing area of the law, NIL [name, image, and likeness] further complicates the existing struggles in determining how NCAA student-athletes should be viewed by the law in the employment context. Such a determination is crucial to understanding the extent of student-athletes’ First Amendment protections. Even as NIL drives the law further in the direction of student-athletes becoming employees of the university, student-athletes are still undeniably enrolled students of the university, and scholastic achievement is still a primary consideration for college athletics.

This unique relationship between student-athletes and their institutions necessitates an entirely new standard for …

Recalibrating Interbranch Bargaining, Emily Berman

William & Mary Law Review

To fulfill its constitutional functions, Congress must have access to information from within the executive branch. Whether it is assessing the need to amend the authorities of administrative agencies, determining whether to fund executive branch programs, or investigating allegations of waste, fraud, and abuse, Congress can act responsibly only if it is able to compile an accurate picture of executive branch activities. When executive branch officials resist these requests—for either legitimate or problematic reasons—the resulting conflict is traditionally resolved amicably through interbranch negotiations, not inter-branch litigation. Indeed, courts heard a total of four congressional-executive information disputes in the nation’s first …

Personhood, Politics, Assisted Reproduction, And The Law Post-Dobbs, Myrisha S. Lewis

Faculty Publications

With the end of the federal constitutional right to abortion, state legislatures and state courts have become far more important in the sphere of reproductive rights. Before Dobbs, anti-abortion advocates had significant (albeit increasingly porous) ceilings on what they could prohibit in relation to reproductive health care. A significant check on those actions is now gone.

In the wake of Dobbs, societal debates about personhood have increased and expanded in terms of their practical implications. Before Dobbs, anti-abortion advocates admitted that Roe and subsequent cases limited the scope of their arguments, especially in relation to the legality …

Rights And Redress For Transgender Survivors Of Prison Rape: The Failures Of The Prison Rape Elimination Act, Natalie Hatton

William & Mary Law Review

This Note will argue that PREA [Prison Rape Elimination Act] provides meager protection and insufficient relief to transgender individuals who have been victims of sexual violence while incarcerated and that the existing mechanisms for relief are insufficient. Because PREA contains no private cause of action to allow survivors of rape to sue for violations of PREA, transgender rape survivors’ pain remains unredressed. To address this problem, this Note puts forth a combination of solutions to remove barriers to redress for transgender survivors of prison rape, including amending PREA to include a private cause of action and repealing provisions of the …

The Process Before The Promise: Ensuring Indigenous Recognition From The Chilean Constitution, Michaela Mazzeo

William & Mary Bill of Rights Journal

Part I of this Note provides a background and overview of the relatively recent surge in the constitutionalization of indigenous rights and recognition in Latin America, and the state of constitutional reform in Chile. Part II lays out a theoretical understanding of the powers of a constitution as a mechanism for societal reformation and as a platform for bringing legal claims, as played out in Brazil and Bolivia. Part III demonstrates the ways in which practical manifestation of that theoretical power stops short. More specifically, both intentional and incidental barriers dampen the effectiveness of the constitutional mechanism for ensuring indigenous …

Is The Constitution Of 1787 A White Supremacist Document? Against Essentialism In Constitutional Interpretation, David S. Schwartz

William & Mary Bill of Rights Journal

A curious convergence is emerging in legal academia around the conclusion that the 1787 Constitution is a white supremacist document. Although most originalists would deny that contention, their methodology strongly favors, if it does not compel, an agreement with progressive, “neo-Garrisonian” scholars that the Constitution of 1787 is indeed a white supremacist document. Both the neo-Garrisonian and originalist elements of this implicit convergence stem from their “essentialism” in Constitutional interpretation: the idea that the Constitution or its terms or provisions carry a uniquely and objectively correct meaning, invariant over time, and independent of our evolving normative commitments.

This Article argues …

Section Three Of The Fourteenth Amendment: Insurrection, Mark A. Graber

William & Mary Bill of Rights Journal

The public, scholarly, and legal debate over whether former president Donald Trump is eligible to hold office under Section Three of the Fourteenth Amendment has focused far more on technical legal questions than on whether Trump engaged in an insurrection. Scholarly and public commentary rarely examines the constitutional/ common law of insurrection, preferring instead to examine whether Trump is exempt from Section Three because Section Three either exempts presidents or the presidency from disqualification or because Section Three is not self-executing. Trump v. Anderson (2024) focused on state incapacity to disqualify “oathbreaking insurrectionists” rather than on whether Trump was an …

Life, Liberty, And Freedom From Non-Consensual Pelvic Exams?, Michaela Cotton

William & Mary Bill of Rights Journal

[T]here is a need for the federal government to intervene and finally ban the practice of performing non-consensual pelvic exams, and it can do so under the Due Process Clause of the Fourteenth Amendment, which guarantees the right to refuse involuntary medical treatment. Part I will provide a brief overview of pelvic exams and informed consent; Part II draws on policy considerations for banning this practice and tackles counter-arguments; Part III will discuss the relevant federal law and case precedent; Part IV demonstrates how federal law applies to non-consensual pelvic exams; and, finally, Part V will further explain the need …

Balancing Tradition And Inclusion: Framework Principles For An Afghan Accord, M. Hamed Isar

William & Mary Bill of Rights Journal

This Article examines the turbulent constitutional history of Afghanistan and proposes a pragmatic constitutional framework balancing Islamic principles with rights, protections, and constraints on power. After analyzing the Taliban’s current extraconstitutional rule and ideological objections to an inclusive order, it makes the case for principled compromise. The first step to constitutional reform for Afghanistan is to recognize that Afghans, the Taliban, and the international community pay a high price for disregarding law and accountability in governance. To that end, this Article canvasses the many factors that could motivate the Taliban to accept the rule of law, despite the constraints it …

Excluded But Equal, Gali Racabi

William & Mary Bill of Rights Journal

Work law is excessively exclusionary. Canonical examples include agriculture workers, independent contractors, and domestic workers. But work law excludes far more workers and employers than those familiar categories. Whole sectors, occupations, business sizes, wage arrangements, geographical areas, and more are excluded from the basic tenets of economic citizenship, including federal, state, and local minimum wage; overtime; and safety and labor protection laws.

Equal protection claims govern the authority of legislatures to determine who is in and who is out of work laws. Excluded workers and included employers now routinely use state and federal constitutional equal protection arguments against exclusionary work …

The First Amendment In Education: May Faculty At Public Schools Be Disciplined For Political Hate Speech?, Ken M. Levy

William & Mary Bill of Rights Journal

At a House hearing on December 5, 2023, the presidents of three universities— Harvard, MIT, and the University of Pennsylvania—refused to state that certain kinds of hate speech, specifically calls for genocide of Jews, are prohibited on their campuses. The backlash against two of them, Harvard’s Claudine Gay and Penn’s Liz Magill, was swift and devastating; both were successfully pressured to resign. Still, while Professors Gay’s and Magill’s responses were widely criticized as tone-deaf, they were legally correct. At many private, and all public, colleges and universities, even the worst hate speech is generally protected unless it is accompanied by …

Independent Environmental Regulator--The Transformation India Needs In Environmental Governance, Abhishek Chakravarty

William & Mary Environmental Law and Policy Review

If we look back fifty years to the Stockholm Conference on Human Environment, one of the key principles the states agreed on was Principle 17, which states, “appropriate national institutions must be entrusted with the task of planning, managing or controlling the environmental resources of States with a view to enhancing environmental quality.” This principle can be interpreted to require the creation of an independent environmental regulator at the national level for environmental regulations and governance.

In 2011, the Honorable Supreme Court in deciding Lafarge Umiam Mining Private Ltd. v. The Union of India directed the Union Government to set …

Approaching A U.S. Regulatory Framework For Sporeless Seaweed Biotechnology, Gabriela Martinez, Terra Bowling, Catherine M. Janasie, Charlie Doering-Powell, Amalia Aruda Almada

William & Mary Environmental Law and Policy Review

Seaweed farming is the fastest-growing aquaculture sector in the United States. The development of sterile, selectively bred (sporeless) seaweed aims to support the economic viability of future large offshore seaweed operations and minimize the environmental risks of these operations to wild seaweed beds. Farmers have implemented analogous breeding techniques to control and enhance most terrestrial crops and common aquaculture products (e.g., oysters and carp). This Article draws from existing federal and state aquaculture policies to explore four pillars critical to a future sporeless seaweed regulatory framework: ensuring maintained sterility, tracing the geographic origin of seed, securing offshore permits, and facilitating …

The Fourteenth Amendment And The Vénus Noire, Farah Peterson

William & Mary Law Review

This Essay makes two points. The first is that originalism is not a promising path for progressive causes. The second is that as the Constitution is amended, the meaning of the entire document is altered, and earlier text should be interpreted in light of what has changed. But instead of making these observations in the usual law review style, I’m calling on a figure out of nineteenth-century art, the Vénus Noire, to serve as our companion and guide.

This abstract has been taken from the author's introductory paragraphs.

The Demise Of Housing First Policy: The New Missouri Policy That Criminalizes Homelessness, Kaitlyn Frerking

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

This Note examines the potential negative complications of Missouri H.B. 1606. The Note also explores possible avenues for relief through litigation or policy reform. H.B. 1606 is a Missouri state bill that altered the State’s policy towards decreasing the rate of homelessness in the State of Missouri. Prior to H.B. 1606, Missouri’s homelessness policy resembled a “Housing First” approach where emphasis was placed on providing affordable permanent housing to those without homes. With the passage of H.B. 1606, the policy turned towards supporting short-term housing initiatives and abandoned the “Housing First” approach. H.B. 1606 also contains a provision that makes …

Terrorism Should Not Be A Crime: How Political Labels Are Dangerous To American Democracy, Abigail S. Grand

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

This Note calls for a dismantling of the United States’ current method of prosecuting terrorism, rejecting the “terrorism” label as a mechanism for charging crimes. Prosecutors should instead charge individuals in terrorism cases for their underlying criminal actions rather than rely on material support statutes and political innuendos to secure a conviction. By examining the implications of the terrorism label in post-9/11 America, this Note addresses how a moral panic enabled the executive branch to overstep its constitutional restraints and threatened the delicate balance of powers central to American democracy. Next, it proposes, as many have before, that Article III …

The Co-Optation Of Restorative Justice And Its Consequences For An Abolitionist Future, Alicia Virani

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

This Article explores the ways in which RJ [restorative justice] has been co-opted, argues that RJ’s core principles can never coexist with the criminal punishment system, and analyzes how RJ co-optation is a barrier to abolitionist goals. It proceeds in three parts. In Part I, I present the fundamental principles upon which RJ processes should be based. While many scholars and practitioners have identified the lack of a consistent RJ definition by which to guide the work, I propose that there are fundamental principles that serve to guide RJ, and these are in stark contrast with the principles and realities …

Human Rights, Human Duties: Making A Rights-Based Case For Community-Based Restorative Justice, Aparna Polavarapu

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

Restorative justice is often framed as an alternative to the criminal legal system, and thus justifications of restorative justice tend to be rooted in the language of the criminal system. However, this approach limits our way of thinking about the practice of restorative justice, especially non-state, community-based practices. This Article argues for an independent, rights-based justification to support these community-based practices. By offering an in-depth analysis originating from a rights-based perspective, this Article engages with two underdeveloped areas of scholarly literature and suggests a new way of thinking about the day-to-day practice of restorative justice through a human rights lens. …

The Uncertain Future Of Restorative Justice: Anti-Woke Legislation, Retrenchment And Politics Of The Right, Thalia González, Mara Schiff

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

As diverse forms of anti-democratic and anti-inclusionary politics escalate in the United States, public education is increasingly a site for retrenchment and contestation with targeted efforts to silence and erase civil rights victories for equity and access. Addressing a critical, yet unattended issue at the intersection of education law and policy and civil rights, this Article joins with the growing discourse interrogating the “parental rights” movement and racially regressive legislation. Employing a case study analysis of social movement activism and education policy legislation from 2018–2023 in Florida, it aims to provoke critical praxis emanating from essential inquiry— what is the …

Infinite Queerness And American Settler Colonialism, Jeremiah A. Ho

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

What the LGBTQ rights movement needs, especially with regard to legal challenges, is a lasting philosophical shift toward the idea that justice and equality are an infinite game rather than a finite and pragmatic one. This work here will explore why this posture is favorable at this moment—and generally in civil rights work. Beyond connecting queer sacrifice in recent Supreme Court cases to the functioning and maintenance of the American settler colonial project, this Article will posit why a strategy shift toward infinite thinking is increasingly necessary for more resolute work that results in the autonomy and equality of LGBTQ …