Law Commons^™

Environmental Insurance And Esg: A Mismatch Or An Unlikely Pair?, Mycah Kindle

William & Mary Environmental Law and Policy Review

Environmental insurance is something that is becoming increasingly important in the corporate sphere. Similarly, there has been an uproar in the Environmental, Social, and Governance (ESG) movement. ESG ratings are becoming the norm in corporate America as a way to quickly assess a corporation through using a variety of factors. This Note will argue that a company’s ESG rating should be a main consideration when insurers are underwriting their environmental insurance policies. This Note will argue that by linking a company’s ESG ratings with their environmental insurance, it may lead to more sustainable practices and accountability from corporate America.

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Allied Professionals In (Academic) Law Libraries, Part I: Evolving Roles, Skills, And Professional Development Needs, Sarah E. Ryan, Mads Ball, Agnes G. Pearcy, Diana Quinones, Dawn L. Smith

Library Staff Publications

Allied professionals comprise a significant portion of the law library workforce, yet their experiences and career pathways are often overlooked in discussions about the profession’s future. This article presents findings from a survey examining how allied professionals pursue professional development, upskilling, and career mobility. While respondents demonstrated a strong commitment to growth, opportunities varied widely and were often limited by institutional support. The authors discuss the survey findings, explore the implications for the profession, and offer recommendations for better supporting allied professionals and recognizing their essential contributions to law librarianship. This is the first in a two-part series.

Mandatory Cooperation Under International Law, Evan J. Criddle, Evan Fox-Decent

Faculty Publications

Humanity in the twenty-first century faces serious global challenges and crises, including pandemics, nuclear proliferation, violent extremism, refugee migration, and climate change. None of these calamities can be averted without robust international cooperation. Yet, national leaders often assume that because their states are sovereign under international law, they are free to opt in or out of international cooperation as they see fit. This book challenges conventional wisdom by showing that international law requires states to cooperate with one another to address matters of international concern – even in the absence of treaty-based obligations. Within the past several decades, requirements to …

The Judicial Voice On The Courts Of Appeals, Allison Orr Larsen, Neal Devins

Faculty Publications

The judicial voice on an appellate court typically speaks in the collective, so when a judge chooses to go solo—either in a dissent or a concurrence—that act deserves a close look. Separate opinions on the U.S. Supreme Court are common because the Justices have strong incentives to articulate a distinctive personal jurisprudence. But lower court judges have always been more reluctant to write separately, and for good reason. The institutional design and longstanding practices of the U.S. courts of appeals are very different from the Supreme Court: Lower appellate court judges are bound by precedent in a different way, rarely …

To The Hague And Beyond: The Shifting Terrain Of International Criminal Justice, Leila Nadya Sadat, Valerie Oosterveld, Sharon Weil, Nancy Combs, David Crane

Faculty Publications

Panel of international criminal law experts speak about the areas in which they work.

Developer Perspectives On Licensing And Copyright Issues Arising From Generative Ai For Software Development, Trevor Stalnaker, Nathan Wintersgill, Oscar Chaparro, Laura A. Heymann, Massimiliano Di Penta, Daniel M. German, Denys Poshyvanyk

Faculty Publications

Despite the utility that Generative AI (GenAI) tools provide for tasks such as writing code, the use of these tools raises important legal questions and potential risks, particularly those associated with copyright law. As lawmakers and regulators respond to these questions, the views of users can offer relevant perspectives. In this article, we provide: (1) a survey of 574 developers on the licensing and copyright aspects of GenAI for coding, as well as follow-up interviews; (2) a snapshot of developers’ views at a time when GenAI and perceptions of it were rapidly evolving; and (3) an analysis of developers’ perspectives, …

(Reverse) Piercing The Trust Veil, Eric Kades

Faculty Publications

Emergent doctrine deems trusts legal entities distinct from their trustees and beneficiaries. Venerable doctrine empowers creditors to "pierce the veil" separating entities' and their owners' property to avoid inequitable treatment. This article weaves together the new and old to craft a legal roadmap for reversing the ongoing race to the bottom among the states authorizing indefensible self-settled asset protection trusts (SSAPTs) designed solely for the purpose of swindling creditors. As a matter of both policy and doctrine, piercing (more precisely, reverse piercing) an entity's veil is ideally suited to empower the creditor of a SSAPT beneficiary to get paid from …

Firearms And Fora: Constructing Public Carry Doctrine, Timothy Zick

Faculty Publications

Where can a person lawfully carry firearms in public? Under what conditions can they do so? Now that the Supreme Court has formally recognized a Second Amendment right to public carry, these are among the most important unresolved questions regarding the right to bear arms. The Second Amendment’s public carry doctrine is in its infancy. How the doctrine develops will have a profound impact on the exercise of Second Amendment rights in public places and on the public square. Integrating a new constitutional right into the public square is not a novel problem. After the Supreme Court recognized First Amendment …

The Library Of Congress At A Crossroads: Executive Overreach And The Future Of Public Knowledge, Leslie A. Street, Amanda M. Runyon

Library Staff Publications

This Article argues that the removal of the Librarian of Congress and the Register of Copyrights exposed a dual vulnerability: a constitutional breach of the separation of powers and a cultural threat to the nation’s knowledge infrastructure. The Library’s structural ambiguity—its simultaneous identity as a legislative library, national library, and copyright agency—has left it vulnerable to executive overreach. By asserting control over an institution designed to serve Congress and safeguard America’s intellectual heritage, the President destabilized a statutory framework that has endured for over two centuries. To protect both constitutional integrity and the Library’s role as custodian of national memory, …

The Specter Of Jury Nullification, Anna Offit

Faculty Publications

Attention to the trial of Luigi Mangione has renewed debate about nullification—the jury’s inviolate power to acquit a defendant contrary to the evidence presented. Jury nullification proponents hold that it is a mechanism of last resort for refusing to apply laws that conflict with the public conscience. Opponents, by contrast, argue that nullification undermines the law by diminishing its legitimacy. To prosecutors and defense attorneys, however, these arguments are immaterial: Jury nullification is part of the institutional landscape of the contemporary jury trial and thus must be treated as a potentiality—a feature of the agnostic, strategic, and ethical terrain of …

The Executive's Takeover Of Independent Agencies: How Institutional Design Gave Way To Political Will, Neal Devins

Faculty Publications

The anticipated demise of the independent agency is a saga that implicates Congress as much as it does the President or the Supreme Court. By capitulating to presidential initiatives and failing to defend their institutional prerogatives, Congress has facilitated presidential control of the administrative state. Indeed, irrespective of whether the Court formally repudiates Humphrey’s Executor, Congress has largely acquiesced to a regime whereby presidents essentially control independent agencies. By highlighting the competing incentives of Congress and the White House, this Essay explains the rise of presidential unilateralism vis-à-vis independent agencies. This Essay also casts light on a critically important but …

An Unclear Connection: The Asylum System's "One Central Reason" Test, Christopher R. Porter

William & Mary Law Review Online

Part I of this Note will provide relevant background information on the asylum system in the United States and the significant changes made in the REAL ID Act.

Part II will analyze the current requirements that asylum applicants must meet to succeed in their asylum petitions, including a brief explanation of each element and the legislative history of the REAL ID Act. Part II will assert that based on the legislative history, the “one central reason” standard is best understood as only slightly elevating an applicant’s burden of proof to further protect against threats to the U.S. without becoming overly …

Free Will, Responsibility, And The Corporation: A Critique Of Corporate Criminal Liability, Declan C. Lawson

William & Mary Law Review Online

Part I of this Note will provide background on the relationship between free will and criminal liability and discuss the extant theories underpinning corporate criminal liability. Part II will examine the shortcomings of those theories. Part III will argue for a free will-based approach for apportioning blame for corporate criminal conduct. Such an approach is both theoretically and practically justified.

This abstract was taken from the author's introduction.

The High Cost Of Law School Casebooks, Jeffrey Bellin

William & Mary Bill of Rights Journal

Commentators have forecasted the demise of high-priced commercial casebooks for two decades. Yet little has changed. This Symposium Essay explores the headwinds facing free and low-cost books in the law school casebook market. It suggests that the biggest problem is “casebook selection inertia.” Given the centrality of the assigned casebook to a typical law school course, professors face strong incentives to make a safe choice from among the leading casebooks—typically those published by the handful of established academic presses who set the highest prices. These choices stick, not only determining the book that will be used for that professor’s future …

Expanding The Foreign National Prohibition To Combat Russian Interference In U.S. Elections, Hailey Arnett

William & Mary Bill of Rights Journal

In 2016, the Russian government purchased political advertisements from U.S. social media companies like Facebook to sway the U.S. presidential election. These purchases violated the foreign national prohibition (“the Prohibition”), which Congress codified as part of the Federal Election Campaign Act Amendments of 1974 (FECA). This Note explains why Congress should expand the Prohibition to capture the recipients of independent expenditures that violate the Prohibition and fine people who run online platforms that receive independent expenditures or contributions made by foreign nationals in violation of the Prohibition.

Part I describes current U.S. case law on domestic and foreign campaign finance …

Foreword: Casebooks And The Choices That Shape Constitutional Law, Sanford Levinson, Caroline Olsen

William & Mary Bill of Rights Journal

This collection of essays is the product of a conversation between the two co-authors of this Introduction. It occurred toward the conclusion of a very illuminating Symposium at William & Mary Law School in March 2024 on Jack Balkin’s latest book, Memory and Authority, on the role that memory plays in our notions of law. Caroline was the incoming Editor-in-Chief of the William & Mary Bill of Rights Journal, which had sponsored the Symposium. Sandy was a participant in the Symposium. Jack is a very close friend with whom he has coauthored at least two dozen articles and …

Casebooks, Canons, And Constitutional Memory, Jack M. Balkin, Sanford Levinson

William & Mary Bill of Rights Journal

Casebooks on constitutional law take a lot of time and effort to prepare. What is the point of bothering to edit one? There are several possible reasons. First, you might want to make money from sales. For the vast majority of law professors, the financial return to the hours spent organizing and editing cases is simply not worth it. Second, you might be the sort of person who just likes to do things by yourself. If you are going through the bother of preparing your own materials, then why not publish them and possibly influence others as well? Most law …

What Is The Measure Of Success For A Constitutional Law Casebook?, Erwin Chemerinsky

William & Mary Bill of Rights Journal

In this Essay, I want to address four topics: how I came to write my constitutional law casebook; my goals for my Constitutional Law class and how the book facilitates achieving them; the challenges in writing a constitutional law casebook; and thoughts about the future of constitutional law casebooks.

There are many different constitutional law casebooks on the market because there are countless different ways of teaching the subject. There is no right way or best way to teach this or any other subject in the law school curriculum. I am describing my approach to teaching a subject that is …

Overruled Cases As A Tool For Inculcating Legal Realism, Michael C. Dorf

William & Mary Bill of Rights Journal

The changes wrought by Dobbs and Students for Fair Admissions v. President and Fellows of Harvard College (SFFA) are hardly the only examples of momentous changes to constitutional law in the last few years. Doctrines involving the religion clauses of the First Amendment, the Second Amendment, the scope of the president’s removal power, and much more have been changing rapidly since Amy Coney Barrett replaced Ruth Bader Ginsburg in the fall of 2020, thereby solidifying a conservative supermajority on the Supreme Court. I imagine that the strengthening of the major questions doctrine, the overruling of Chevron deference to federal administrative …

Teaching Firearms Law: One Big Opportunity And Three Pedagogical Challenges, Joseph Blocher, Jacob D. Charles, Darrell A.H. Miller

William & Mary Bill of Rights Journal

The U.S. Supreme Court’s groundbreaking 2008 decision in District of Columbia v. Heller ushered in a new era for the Second Amendment: one in which the right to keep and bear arms, long dormant as a matter of practical impact and even “embarrassing” as a matter of legal scholarship, vaulted into the front ranks of constitutional law. The Court itself has only revisited the Amendment a few times since then—albeit once by revolutionizing the doctrine. Meanwhile, lower courts have issued thousands of decisions giving shape to the right, while scholars have generated work that is increasingly deep, diverse, and challenging. …

Show And Tell: Writing Constitutional Law Casebooks When The Law Doesn't Matter, William D. Araiza

William & Mary Bill of Rights Journal

Writing a constitutional law casebook today presents significant challenges. One reason among several stands out: law matters less—indeed, sometimes very little—to those charged with interpreting our constitutional law and implementing our constitutional system.

This Essay examines this challenge and explains how my contribution to the constitutional casebook genre attempts to answer it. It argues that the current moment requires instructors, and the books they use, to “show”—that is, to demonstrate to their students both the handiwork of those interpreters and implementers and alternative pathways. Sometimes, however, practical considerations preclude such showing. In those situations, “telling” may be required. But regardless …

Coping With A Court One Disagrees With, Randy E. Barnett, Josh Blackman

William & Mary Bill of Rights Journal

Part I of this Essay focuses on our approach to teaching the constitutional canon. This part is adapted from the Preface to our constitutional law casebook. Part II traces the evolution of our casebook from the First Edition to the Fourth Edition, and the forthcoming Fifth Edition. We demonstrate that the constitutional canon has changed, but remains remarkably stable. Part III addresses how we, and other like-minded law professors, managed to teach decisions that we fundamentally disagreed with.

This abstract has been taken from the authors' introduction. 

What Should A Constitutional Law Casebook Be?, William Funk

William & Mary Bill of Rights Journal

What is the purpose of a “casebook”? It is not a “hornbook,” designed to summarize or explain the law in a specific area, generally aimed at law students or lawyers to provide a straightforward statement of the law. It is not a “treatise,” a comprehensive, systematic exposition of the law in a particular field, involving an in-depth analysis and interpretation of the law. And it is not a “study aid,” supplementary material designed to help students do better in their classes. It is the book used by professors in their classes. For professors of constitutional law, it is a tool …

Intellectual Integrity, Collaboration, And The Market, Mark Tushnet

William & Mary Bill of Rights Journal

My reflections are those of someone who co-edited/co-authored two casebooks that were commercially and intellectually successful and one that was intellectually but not commercially successful. I start with the assumption that people decide to do a casebook because they find that existing materials don’t do some things they think ought to be done in the course (and do some things that aren’t really necessary for teaching purposes). That is, doing a casebook is at the outset an intellectual project.

Executing that project runs up against some constraints almost immediately. A simple one is that you might well think that you …

What Belongs In A Constitutional Law Casebook?, Ernest A. Young

William & Mary Bill of Rights Journal

This Essay argues that constitutional law cannot (and should not) be an autonomous subject within the legal curriculum. This argument echoes a long-standing debate about whether law itself is an autonomous scholarly discipline. The answer to that question is surely, as Allan Farnsworth put it, “sometimes YES and sometimes NO.” But this Essay does not focus on law’s autonomy from other disciplines, such as political science, psychology, or economics. Rather, I consider the extent to which constitutional law should overlap with other legal subjects, such as legal history, administrative law, or statutory interpretation. My conclusion is that, at least in …

Generational Impact: How U.S. Government Generative A.I. Use Reinvigorates Copyright-Based Takings Concerns, Sophia Tully

William & Mary Bill of Rights Journal

This Note argues (1) that the unique character of government copyright infringement supports a copyright holder’s use of the Takings Clause of the Fifth Amendment, as opposed to reliance on the Copyright Act for downstream Gen A.I. suits; (2) that Gen A.I. developers may wage similar claims once asserting authorship rights and copyright over their outputs; and (3) that the viability of federal government copyright infringement as a regulatory taking could change the way legal actors deal with copyrighted material. More modestly assessed, an answer on whether the Takings Clause protects copyrights would offer much needed guideposts as intellectual property …

Rethinking Juror Impartiality, Anna Offit

Faculty Publications

Jury impartiality in the contemporary court often justifies the perpetuation of exclusionary selection practices that make juries more—not less—biased. This Article calls for a rethinking of this important but flawed concept. Constitutional interpretations and conceptions of “impartiality” frame it as a transient orientation toward particular evidence or parties. Yet, during voir dire, the prevailing conception of jury impartiality is that it is an immutable character trait that must be discovered—if not created—by professional legal actors. What voir dire creates is not an impartial jury, but precisely the opposite: a venire shaped by the strategic biases of lawyers.

This Article offers …

Judge Platt Potter: Politics And Principle In Interbranch Conflict, Aaron-Andrew P. Bruhl

Faculty Publications

During the previous Congress, some commentators called on the Senate Judiciary Committee, then controlled by Democrats and chaired by Senator Dick Durbin of Illinois, to demand the testimony of Supreme Court Justices Clarence Thomas and Samuel Alito over allegations of ethical breaches, securing their presence by subpoena if necessary. The Committee did not subpoena the Justices, with Durbin citing the likely lack of sufficient votes and worrying that the Senate would not be able to enforce the subpoenas anyway. During the same Congress, Durbin asked Chief Justice Roberts to testify about judicial ethics, an invitation that Roberts declined.

These incidents …

The Political Dynamics Of Constitutional Law, Neal Devins

William & Mary Bill of Rights Journal

No abstract provided.

What Makes A Con Law "Doctrine" And Why Does It Matter?, Allison Orr Larsen

William & Mary Bill of Rights Journal

A few years ago, I started wondering about the “major questions doctrine” (or MQD) in administrative law, and I found myself asking: “When did that become a thing?” I was familiar with the cases that stand for the proposition that Congress does not lightly delegate high stakes questions to administrative agencies—cases that date back to 2000 and specifically to a decision about cigarette advertising and the FDA. But up until 2022, it was rare for courts and commentators to refer to that collection of cases as a “doctrine.” Today, by contrast, the major questions doctrine is bread and butter administrative …