Law Commons^™

The Evolution Of Sodomy Decriminalization Jurisprudence In Transnational And Comparative Constitutional Perspective, Ayodeji Kamau Perrin

William & Mary Bill of Rights Journal

In this Article, I demonstrate that legal mobilization by activist litigants combined with a comparative methodological jurisprudence has been central to the “transnational legal process” of the generation and diffusion of the sodomy decriminalization norm since the 1950s. My analysis of the transnational comparative jurisprudence relies on a comprehensive legal survey of seven decades of decriminalization jurisprudence (1954–2022), primarily using successful cases. Although the scholarship on the well-known Dudgeon, Toonen, and NCGLE cases often asserts the influence that these cases had on subsequent domestic court constitutional jurisprudence, I suggest that it is the domestic privacy jurisprudence of lobbyists, …

Dobbs' Sex Equality Troubles, Marc Spindelman

William & Mary Bill of Rights Journal

This article takes up what Dobbs v. Jackson Women's Health Org. may mean for sex equality rights beyond the abortion setting. It details how Dobbs lays the foundation for rolling back and even eliminating Fourteenth Amendment sex equality protections. The work scales these possibilities against a different dimension of the ruling that’s yet to receive the attention that it merits. An important footnote in Dobbs, Footnote 22, sketches a new history-and-tradition-based approach to unenumerated rights under the Fourteenth Amendment’s Privileges or Immunities Clause. The jurisprudence that this Footnote capacitates could transform the constitutional landscape via new economic and social …

Revisiting Rights-Talk In Magna Carta: Applying Hohfeld To The Problem, Jason Taliadoros

William & Mary Bill of Rights Journal

This Article attempts to resurrect rights-talk in Magna Carta and, in doing so, to revisit rights discourses in the histories of rights more generally. It does so by means of a rights discourse that is axiomatic and therefore arguably free from the contentious underpinnings that potentially beset many historical accounts of rights. This is the formalistic account of rights offered by influential legal theorist Wesley Hohfeld. Against charges that it is anachronistic to apply a modern formalist legal theory such as Hohfeld’s to pre-modern sources, it is contended that this same accusation could be levelled at any other attempt to …

Table Of Contents (V. 48, No. 1)

William & Mary Environmental Law and Policy Review

No abstract provided.

Regulating Co2 Emissions Post-West Virginia V. Environmental Protection Agency, Rebecca J. Davis, Justin Blount

William & Mary Environmental Law and Policy Review

In West Virginia v. Environmental Protection Agency, the Supreme Court expressly adopted the major questions doctrine and used it to invalidate the Clean Power Plan, a rule intended to reduce carbon dioxide emissions from power plants. This opinion has been controversial and has left many commentators concerned that it may hamper the ability of administrative agencies to aggressively and flexibly regulate.

This Article analyzes this opinion and the impact it may have on ongoing efforts to regulate carbon dioxide emissions at the federal level. It then examines economic theory underpinning environmental regulation, developing technologies to reduce carbon dioxide emissions, …

To Have And To Be: An International Human Right To Clean, Healthy, And Sustainable Environment, Deepa Badrinarayana

William & Mary Environmental Law and Policy Review

In July 2022, the United Nations General Assembly passed Resolution 76/300 (“the Resolution”)—affirming a human right to clean, healthy, and sustainable environment (“environmental human rights”). The Resolution essentially affirms a linkage between environmental human rights and “other rights and existing international law,” and “calls upon States, international organizations, business enterprises and other relevant stakeholders to adopt policies, to enhance international cooperation, strengthen capacity-building and continue to share good practices,” to achieve environmental human rights.

[...]

This Article offers a glass half-full perspective on the Resolution, with the caveat that the glass could rapidly become empty unless the right is internalized …

Fueling A Hydrogen Boom: Federal And State Policies For Promoting Green Hydrogen, Kayna Lantz, Luke Sower

William & Mary Environmental Law and Policy Review

“Green” hydrogen produced from renewable energy sources could play a valuable role in the energy transition. Among other things, green hydrogen’s potential as a source of carbon-free, long-term energy storage could help the nation address the intermittency-related challenges associated with growing reliance on wind and solar power. Green hydrogen also has promise as an energy-dense fuel for industries that are difficult to electrify, such as long-haul transportation and steel and fertilizer manufacturing. Recent federal actions have provided some initial government support for green hydrogen technologies, but significant policy gaps remain. States and the federal government could do much more to …

Disaster Districts: Mid-Decade Redistricting In The Face Of Climate Change, J. Gray Whitsett

William & Mary Environmental Law and Policy Review

This Note argues that judicial and legislative efforts to constrain redistricting should incorporate legal stopgaps to allow for mid-decade redistricting in the wake of disasters that result in significant population displacement. Part I reviews how climate change is exacerbating natural and manmade disasters and the potential for these disasters to cause population displacement, particularly in the context of urbanization. Part II provides an overview of the typical redistricting process and requirements for electoral districts. It also details the debate over mid-decade redistricting, including efforts to prevent it. Part III proposes preconditions for “emergency redistricting” that judges and legislators should consider …

Suffering In Search Of A Methodological Frame: Interdisciplinarity In The Context Of The Gendered Impact Of Climate Migration, Becky Jacobs

William & Mary Environmental Law and Policy Review

In this essay, the author places the gendered impact of climate migration within the methodological frame of scholars such as geographers Sylvia Winters and Doreen Massey, historian Achille Mbembe, philosopher Gilles Deleuze, philosopher and psychoanalyst Félix Guattari, and anthropologist Tim Ingold. The author discusses the importance of interdisciplinarity and describes the gender-specific risks related to climate displacement before delving into theory.

Preparing For The Flood: Virginia Local Governments' Stormwater Management Liability, James E. Davidson

William & Mary Environmental Law and Policy Review

This Note explains that modern interpretations of Virginia Code § 15.2-970 have made Virginia municipalities immune to tort suits arising from the negligent maintenance of stormwater systems. Due to the Virginia Supreme Court’s holdings in Livingston v. Virginia Department of Transportation and other inverse condemnation suits, localities may be found liable when their stormwater management decisions cause property damage. However, following the Court’s holding in AGCS Marine Insurance Co. v. Arlington County, which prevented inverse condemnation claims arising from municipal negligence, residents are still unlikely to find legal redress for negligent stormwater management that results in property damage. Therefore, this …

William & Mary Law School Clinical Program Newsletter (Fall 2023), William & Mary Law School

William & Mary Law School Clinical Program Newsletter

No abstract provided.

Cash Kid: The Need For Increased Financial Protections Of Internet Child Stars On Youtube, Kylie Clouse

William & Mary Law Review

This Note explores the gaps in California’s child entertainment law and the dangers of leaving child internet stars unprotected. This Note argues that while California could update their “Coogan Law” to include young internet stars, a previous attempt (and failure) to do so suggests that this may not be the best way to address the issue. In the alternative, YouTube itself has the framework to address this problem through its Partner Program. If YouTube were to fix the problem directly, it would leave child stars on other online platforms unprotected; but it could set a precedent among other platforms that …

Academic Economic Espionage?, Elizabeth A. Rowe

William & Mary Law Review

In 2018 the U.S. government announced that Chinese espionage was occurring in university research labs, and the Department of Justice subsequently made it a high priority to prosecute economic espionage in academia. The DOJ’s grave concerns about espionage in academia have continued, and the Director of the FBI has lamented that American taxpayers are footing the bill for China’s technological development. This geopolitical concern about espionage has had real world and personal consequences in academia. Since 2019, over a dozen high-profile criminal prosecutions have put prominent professors at major research universities across the country in handcuffs and almost all the …

Using What We Have: How Existing Legal Authorities Can Help Fix America's Nursing Home Crisis, Nina A. Kohn, Adrianna Duggan, Justin Cole, Nada Aljassar

William & Mary Law Review

The COVID-19 pandemic exposed systemic quality-of-care problems in American nursing homes as well as the deadly consequences of a regulatory system that has enabled nursing homes to divert funds needed for care to profit. Policy experts have responded by urging regulators to improve nursing-home oversight practices and by calling for new regulatory and statutory authority to increase accountability. These calls, however, have been met with sharp political headwinds. This Article suggests a path around the political impasse. Specifically, it identifies and explores four opportunities to leverage existing statutory schemes to create stronger incentives for nursing homes to provide high-quality care. …

Retconning Heller: Five Takes On New York State Rifle & Pistol Association, Inc. V. Bruen, Brannon P. Denning, Glenn H. Reynolds

William & Mary Law Review

New York State Rifle & Pistol Association, Inc. v. Bruen was the first significant Second Amendment case that the Supreme Court had heard in nearly fifteen years since its decision in District of Columbia v. Heller. This Article offers some preliminary observations about the opinion itself, as well as its likely effects, some of which are starting to manifest.

Our first take concerns the question of opinion assignment. Why did Chief Justice Roberts—whose support for the Second Amendment has been suspect—assign the opinion to Justice Thomas?

Takes Two and Three concern Justice Thomas’s substitution of text, history, and tradition …

Playing The Unfair Game: Apostates, Abuse & Religious Arbitration, Thomas Floyd

William & Mary Law Review

This Note argues that the Bixler [v. Superior Court] approach should become the standard for evaluating the enforceability of religious arbitration against ex-members. Courts should not enforce agreements to religious arbitration against ex-members of a faith when the relevant conduct occurred after their religious affiliation ended. The First Amendment right of believers to leave their faith should prevail over the First Amendment right of churches to police their internal religious doctrine. Siding with the institutions on this issue allows them the power to exert control over apostates in perpetuity through an unintended synergy of the First Amendment and …

Creating Land With Artificial Oyster Rings: Legal Challenges From State Owned Bottom Land To Living Shorelines, Faith Parker, Will Reach

Virginia Coastal Policy Center

The Virginia Sea Grant program approached VCPC to conduct research in partnership with the William & Mary Public Policy Program and a James Madison University (JMU) architecture professor, Jori Erdman. Professor Erdman is researching the viability of creating land with artificial oyster rings based on similar projects seen in Louisiana. Professor Erdman has provided the diagrams of the project used throughout this paper. Ultimately, this paper examines some legal issues raised by the use of these rings to prevent coastal erosion or act as a flooding buffer for commercial or residential buildings. With this goal in mind, this paper addresses …

Brigham-Kanner Property Rights Journal, Volume 12, William & Mary Law School

Brigham-Kanner Property Rights Journal

The Importance of Property Rights

September 29-30, 2022

Panel 1: The Importance of Property Rights: A Tribute to James S. Burling

Panel 3: Roundtable: Emerging Issues in Takings and Property Rights Litigation

Featured Authors (Burling, Kanner, and Valois)

Analog Analogies: Intel V. Hamidi And The Future Of Trespass To Chattels, Maureen E. Brady, James Y. Stern

Faculty Publications

A symposium on great torts cases of the twenty-first century must include Intel Corp. v. Hamidi, the canonical case about whether unwanted e-mail spam sent to a company’s server could give rise to a trespass to chattels claim. While much has been written about Intel, in this Essay, we argue that Intel is as much of a classic for what it reveals about the old-fashioned tort as it is for its more closely examined ruling on “cybertrespass.” The dueling personal property analogies chosen by the majority and dissenting opinions in Intel reveal basic and fundamental disagreements about what …

Aals Federal Courts Section Newsletter, Katherine Mims Crocker, Celestine Richards Mcconville

Popular Media

No abstract provided.

The Starting Is The Hardest Part: Using Chatgpt To Overcome Writer’S Block, Margie Alsbrook

Incorporating ChatGPT in the Legal Research & Writing Classroom

We all know that editing a draft, even a bad draft, is easier than starting from scratch with a blank page. Even if ChatGPT produces something you hate, the draft produced by the software can “unstick” us and our students and jump start a surge of productive work. With editing this eventually leads us to good work product, and that work product will likely be better because we started earlier and went through a more thoughtful process. The presentation would also include ways in which ChatGPT can help LRW professors with some of the parts of the job that we …

Move Over Wright & Miller--Is Chatgpt The Only Secondary Source You Will Ever Need? Spoiler Alert...It's Not!, Jacob Waldo, Susan O. Winters

Incorporating ChatGPT in the Legal Research & Writing Classroom

AI tools like ChatGPT are increasingly widespread, and despite an uncertain future due to a rapidly evolving technology landscape, they are likely here to stay. Many of the digital tools used by law students and lawyers will soon be incorporating sophisticated AI technology into their platforms. Students already use ChatGPT to brainstorm, proofread their papers (or write them entirely), summarize information, and more. Failing to integrate ChatGPT into the legal research curriculum not only risks diminishing our professional authenticity with students but could also lead to the devaluation of traditional legal research skills in favor of convenient, albeit less reliable …

Scheherazade, Chatgpt, And Me: Storytelling And Ai, Tracy L. M. Norton

Incorporating ChatGPT in the Legal Research & Writing Classroom

Humans developed language to tell stories. Gesturing, demonstration, and vocalization worked for communicating instructions or basic information. But establishing and maintaining community required story, and story required language. Our desire to tell better stories and share them more widely has led to the creation of art forms from simple guitar ballads to epic motion pictures and intricate first-person video games. So it’s no wonder that, in the era of generative artificial intelligence, storytellers would be among the first to put AI to work. Storytellers have been using AI for years already to develop stories, which means that AI has itself …

The Case For Iterative Legal Writing Practice With Chatgpt, Joseph Regalia

Incorporating ChatGPT in the Legal Research & Writing Classroom

In this session, Professor Joe Regalia will share his work developing legal-writing education tools that leverage GPT technology. He will also share best practices for creating assessments, exercises, and activities for your own students that are tailored to how and what you teach in the classroom.

Much of this presentation will focus on case studies and live, hands-on examples (given this is virtual) so that we can spend most of the time learning by doing together.

An Immodest Proposal: Ai, Llms, And The Case For A Standalone Legal Research Requirement, Nicholas Mignanelli, Susan Drisko Zago, Jordan Jefferson, Sarah C. Slinger

Incorporating ChatGPT in the Legal Research & Writing Classroom

The legal research course is over a century old. As a law school subject, it predates many doctrinal courses, as well as the advent of clinical legal education. It is several decades older than its sister subject, legal writing. In spite of its age and obvious importance, the place of the legal research course in the law school curriculum remains contested. While some law faculties recognize the value of legal research instruction and require a standalone legal research course in the first year, the vast majority combine it with legal writing (often over the objections of legal writing instructors and …

Chatgpt In A Contract Drafting Class, Ben Fernandez, Kristen Hardy

Incorporating ChatGPT in the Legal Research & Writing Classroom

Our presentation will discuss the impact of ChatGPT on contract drafting pedagogy. Specifically, we will examine ChatGPT’s basis of knowledge and whether it has sufficient theoretical foundation to be used as a pedagogical tool; whether ChatGPT’s practical application supports proven methods of instructional delivery; and ChatGPT’s functionality as an assessment tool.

1. ChatGPT’s basis of knowledge and whether it has sufficient theoretical foundation to be used as a pedagogical tool

Our presentation will compare the pretraining of ChatGPT and to the typical Contract Drafting pedagogy. We will start by showing the program on a screen and asking it how it …

What Did I Miss? A Demonstration Of The Differences Between Chatgpt-4 And 3.5 That Impact Legal Research And Writing, Laura Killinger, Leslie A. Street

Incorporating ChatGPT in the Legal Research & Writing Classroom

Many news sources are raving about how much more advanced ChatGPT-4 is than 3.5. You may have heard that ChatGPT-4 outscored 90% of test takers on the Uniform Bar Exam, while ChatGPT 3.5 only outscored 10% of test takers. But what does this mean for teaching legal research and writing? In this presentation, we will compare specific examples of ChatGPT 3.5 (the free version many of us tried in the spring) and ChatGPT-4 (the paid version released in March).

“You’Ve Got A Friend In Me”: Helping Students Help Ai, Brad Charles, Mark Cooney

Incorporating ChatGPT in the Legal Research & Writing Classroom

ChatGPT and its family of generative tools may seem new, but the process that ChatGPT imitates is as old as Egyptian papyri: The end-user still had to adapt the form text to each person’s unique situation.

Similarly, modern attorneys may use AI to adapt legal documents to their clients’ needs. But they must also learn how to spot problems in AI-generated documents — omissions, wrongful additions, inaccurate law, legalese, and poor typography. They need to instruct ChatGPT or other generative AI to continue revising until the document reflects best practices.

In short, our students as future attorneys need to know …

Putin's Matryoskha: A War Reparations Facility For Rebuilding Ukraine, Lev E. Breydo

Faculty Publications

This Article addresses a critical, trillion-dollar question: How do we hold Russia accountable for the reconstruction of Ukraine? The nation has been devastated by Russia's brutal war of aggression, with tens of thousands killed, millions displaced and its economy in shambles. The enormity of the problem cannot be overstated.

Existing proposals to support Ukraine, including many from prominent scholars, largely focus on seizing Russian assets, particularly central bank reserves "frozen" by sanctions. Such strategies, however, are legally problematic-- likely well beyond the scope of Presidential authority-- and financially insufficient. Moreover, while prospective new legislation could expand presidential powers, it risks …

Here Are Ways Professional Education Leaders Can Prepare Students For The Rise Of Ai, A. Benjamin Spencer

Popular Media

No abstract provided.