Law Commons^™

Unreasonable Traffic Stops, Sam Kamin

William & Mary Law Review

In 1996, the Supreme Court announced in Whren v. United States that a traffic stop is constitutional if there is probable cause to believe a traffic infraction has occurred. So long as the officers who stop an individual can point—even after the fact—to any violation of the traffic laws, their actual, subjective motivations for initiating a stop are legally irrelevant. Case-by-case determination of reasonableness is unnecessary in the traffic stop context, the Court concluded, because the balancing of interests has already been done. Unlike warrantless entries into homes, the use of deadly force, or unannounced warranted entries, a traffic stop …

Section 898: Targeting The Companies Behind Gun Violence In New York With Public Nuisance Doctrine, Mara Kravitz

William & Mary Law Review

On July 6, 2021, the New York State Legislature enacted sections 898-a to -e of the New York General Business Law (section 898), creating a clear path for public entities and private gun violence victims to sue gun industry members for their role in the gun violence public nuisance in New York. This Note explores why the legislature took a public nuisance approach to curbing gun violence, framing section 898 within public nuisance doctrine’s broader common law history and legal elements.

To unpack how and why New York took this approach, the first Part of this Note traces the history …

Rage Rhetoric And The Revival Of American Sedition, Jonathan Turley

William & Mary Law Review

We are living in what Professor Jonathan Turley calls an age of rage. However, it is not the first such period. Professor Turley explores how the United States was formed (and the Constitution was written) in precisely such a period. Throughout that history, sedition has been used as the vehicle for criminalizing political speech. This Article explores how seditious libel has evolved as a crime and how it is experiencing a type of American revival. The crime of sedition can be traced back to the infamous trials of the Star Chamber and the flawed view of free speech articulated by …

Afraid For The Dark: Regulating Light Pollution Under The Clean Water Act, Katrina Umstead

William & Mary Law Review

Currently, light pollution is only regulated at the state and local level. However, not all states implement legislation to mitigate the adverse effects of ALAN [Artificial light at night]. Nineteen states, the District of Columbia, and Puerto Rico have implemented laws to reduce light pollution. In states without such laws, or in federal waters, light-intensive activities remain unchecked. The rapid increase in light pollution in recent years illustrates the inadequacies of existing state and local regulatory schemes and calls for a new understanding of ALAN as a pollutant to marine ecosystems.

This Note argues that the existing tools in the …

The Anti-Innovation Supreme Court: Major Questions, Delegation, Chevron, And More, Jack M. Beermann

William & Mary Law Review

The Supreme Court of the United States has generally been a very aggressive enforcer of legal limitations on governmental power. In various periods in its history, the Court has gone far beyond enforcing clearly expressed and easily ascertainable constitutional and statutory provisions and has suppressed innovation by the other branches that do not necessarily transgress widely held social norms. Novel assertions of legislative power, novel interpretations of federal statutes, statutes that are in tension with well-established common law rules, and state laws adopted by only a few states are suspect simply because they are novel or rub up against tradition. …

Ukraine V. Russia: A Case For Change In International Enforcement, Katy Malloy

William & Mary Law Review

A scant few territorial violations have occurred in the twentieth and twenty-first centuries, and those that have occurred generally prompted quick and unequivocal condemnation, as well as efforts to return to the status quo. Notable violations—the Six-Days War, the Turkish invasion of Cyprus, the Falklands War, Iraq’s invasion of Kuwait, and Russia’s annexation of Crimea—have prompted a short menu of international responses. The Six-Days War and the invasion of Crimea both prompted years’ worth of political criticism for Israel and Russia, respectively, as both nations have held onto at least parts of the lands seized. The Falklands War prompted almost …

Issues, Evan C. Zoldan

William & Mary Law Review

The Federal Rules of Civil Procedure have issues—148 issues to be exact. Although the Rules use the term “issue” throughout their text, they do not use it in the same way each time. In some circumstances, the meaning of “issue” is made clear by surrounding context, minimizing any interpretive difficulty. But sometimes context does not clarify the term’s meaning, creating interpretive challenges. This Article argues that the ambiguous term “issue” found in Federal Rules of Civil Procedure 50 and 52 is best read to mean a “dispute of fact.” This reading best comports with judicial interpretations of Rules 50 and …

The "Free White Person" Clause Of The Naturalization Act Of 1790 As Super-Statute, Gabriel J. Chin, Paul Finkelman

William & Mary Law Review

A body of legal scholarship persuasively contends that some judicial decisions are so important that they should be considered part of the canon of constitutional law including, unquestionably, Marbury v. Madison and Brown v. Board of Education. Some decisions, while blunders, were nevertheless profoundly influential in undermining justice and the public good. Scholars call cases such as Dred Scott v. Sandford and Plessy v. Ferguson the anticanon. Recognizing the contemporary centrality of statutes, Professors William Eskridge and John Ferejohn propose that certain federal laws should be recognized as part of legal canon because of their extraordinary influence and duration. These …

Creating A Racialized Liminal Status: The 1790 Act And Interstitial Citizenship, Rose Cuison-Villazor

William & Mary Law Review

This Comment began with De La Ysla’s case to highlight the political status that Filipinos held when the Philippines was a U.S. territory. This Comment argues that this status, which a court would later describe as a “hybrid status ... the so-called ‘non-citizen national,’” was a racialized liminal political status with roots in the 1790 Naturalization Act (1790 Act). Professors Jack Chin and Paul Finkelman claim that the 1790 Act played a critical role in shaping “the very composition of the people of the United States” by including the “free white person” clause in the country’s first naturalization law. One …

Afterward: A Reply To Commentators, Gabriel J. Chin, Paul Finkelman

William & Mary Law Review

Authors Gabriel J. Chin and Paul Finkelman respond to the comments on their article, The "Free White Person" Clause of the Naturalization Act of 1790 as Super-Statute.

Separate, Sovereign, And Subjugated: Native Citizenship And The 1790 Trade And Intercourse Act, Bethany Berger

William & Mary Law Review

In 1790, the same year Congress limited naturalization to “free white persons,” it also enacted the first Indian Trade and Intercourse Act. The Trade and Intercourse Act may have even stronger claims to “super statute” status than the Naturalization Act. Key provisions of the Trade and Intercourse Act remain in effect today, and the Act enshrined a tribal, federal, and state relationship that profoundly shapes modern law. Unlike the Naturalization Act, the Trade and Intercourse Act reflected the input of people of color: it responded to the demands of tribal nations and—to a degree—reflected tribal sovereignty. While Indigenous people could …

The Road Not Taken: A Critical Juncture In Racial Preferences For Naturalized Citizenship, Ming Hsu Chen

William & Mary Law Review

In The “Free White Person” Clause of the Naturalization Act of 1790 as Super-Statute, Gabriel Jack Chin and Paul Finkelman argue that racist results in naturalization have arisen despite, or maybe because of, the race neutral interpretation. This happened in a manner that could have been predicted by the federal government’s attitudes toward non-White persons in the Naturalization Act of 1790 and the nearly unbroken chain of legal developments. This leads them to think of the law as a “super-statute.” While I agree that this is the path actually taken in history, I view the mid-1960s civil rights era …

Paradoxical Citizenship, Amanda Frost

William & Mary Law Review

In their article, The “Free White Person” Clause of the Naturalization Act of 1790 as Super-Statute, Gabriel J. Chin and Paul Finkelman make a powerful case that the Naturalization Act of 1790 is a “super-statute” that has shaped not only U.S. immigration law and policy, but also America’s conception of itself as a “White nation.”

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This Comment explores the conflict between the Naturalization Act’s racial restrictions on citizenship (and its proponents’ vision of the United States as a White nation) and the Fourteenth Amendment’s Citizenship Clause (and its proponents’ vision of the United States as a multiracial …

Decommodifying Cultural Heritage: A Linguistic Unpacking Of "Cultural Property", Zoe Creamer

William & Mary Law Review

The complex history of cultural property regulation in the United States, discussed below, suggests a lack of consensus regarding the definition of the legislation’s target. However, as this Note argues, it is futile to attempt crafting a precise definition of the objects qualifying for protection under such legislation without first addressing the dueling interests inherent in the operative words. An examination of the various aims of cultural property legislation reveals two competing goals. On one side exists the desire to protect cultural heritage for the world’s enrichment, and on the other is the desire to protect private ownership rights. These …

The Uncertain Future Of Tourism On Migrating Barrier Islands: How And Why The Outer Banks Of North Carolina Should Adjust To Growing Threats, Lillian Coward

William & Mary Law Review

Erosion, storms, and the migration of the barrier islands that comprise the Outer Banks themselves are not new. The rising seas that have resulted from climate change have merely exacerbated what has always occurred. What is new, however, is the economic havoc that natural processes and disasters alike can wreak on the islands. Today, because climate change has accelerated natural island migration, individuals, local governments, and the federal government alike have a lot to lose in the fight against the tides.

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This Note will evaluate a variety of potential solutions to the problems that pose nearly existential threats to …

Bottom-Up Federal Sentencing Reform, Andrew W. Grindrod

William & Mary Law Review

Today, about 160,000 people live behind the bars of a federal prison. That is roughly the population of Alexandria, Virginia. Starting from the premise that the federal system’s contribution to mass incarceration should be curbed and recognizing that broad legislative reform seems unlikely, this Article considers the federal judiciary’s potential role in sentencing reform.

Bottom-up sentencing reform consists of federal trial judges exercising their decisional authority in individual cases to engage with the fundamental premises and assumptions that underlie traditional sentencing decisions, categorically rejecting them when appropriate. This approach to reform is available under current law. In fact, a few …

The Road To Hell Is Paved With Good Intentions: Deinstitutionalization And Mass Incarceration Nation, Corinna Barrett Lain

William & Mary Law Review

They say that the road to hell is paved with good intentions, and our failed implementation of deinstitutionalization in the 1970s is a prime example of the point. In this symposium contribution—a response to Jeffrey Bellin’s book Mass Incarceration Nation—I offer a historical account of deinstitutionalization of state mental hospitals, tracing how severely mentally ill patients were discharged from state hospitals and eventually made their way back to secure beds, but in our nation’s jails and prisons instead. Mental health and mass incarceration are not separate crises, I argue, but rather interconnected problems with an interconnected past that require …

Symposium Introduction: The Volume Problem, Jeffrey Bellin

William & Mary Law Review

Introduction to the 2024 William & Mary Law Review symposium, "Understanding and Responding to Mass Incarceration."

Critical Data Theory, Margaret Hu

William & Mary Law Review

Critical Data Theory examines the role of AI and algorithmic decisionmaking at its intersection with the law. This theory aims to deconstruct the impact of AI in law and policy contexts. The tools of AI and automated systems allow for legal, scientific, socioeconomic, and political hierarchies of power that can profitably be interrogated with critical theory. While the broader umbrella of critical theory features prominently in the work of surveillance scholars, legal scholars can also deploy criticality analyses to examine surveillance and privacy law challenges, particularly in an examination of how AI and other emerging technologies have been expanded in …

When All Else Fails: The Doctrine Of Foreign Equivalents As A Bar To Cultural Misappropriation, Stephanie H. Soh

William & Mary Law Review

This Note argues that under trademark law, the doctrine of foreign equivalents can be utilized to prevent some aspects of legally enforced cultural misappropriation. While it would be impossible to solve cultural misappropriation in one written piece, this Note proposes that the doctrine can serve to prevent applicants from obtaining trademark protections for certain foreign words.

Part I of this Note provides background on cultural misappropriation and the doctrine of foreign equivalents. Part II argues why the doctrine of foreign equivalents is poised to solve some of the harms of cultural misappropriation both in its structure and purpose. Part III …

State Sovereign Immunity And The New Purposivism, Anthony J. Bellia Jr., Bradford R. Clark

William & Mary Law Review

Since the Constitution was first proposed, courts and commentators have debated the extent to which it alienated the States’ preexisting sovereign immunity from suit by individuals. During the ratification period, these debates focused on the language of the citizen-state diversity provisions of Article III. After the Supreme Court read these provisions to abrogate state sovereign immunity in Chisholm v. Georgia, Congress and the States adopted the Eleventh Amendment to prohibit this construction. The Court subsequently ruled that States enjoy sovereign immunity independent of the Eleventh Amendment, which neither conferred nor diminished it. In the late twentieth-century, Congress began enacting …

Preserving The Futures Of Young Offenders: A Proposal For Federal Juvenile Expungement Legislation, Amelia Tadanier

William & Mary Law Review

Picture a sixteen-year-old named Sam. Perhaps this person reminds you of yourself as a teenager. Now imagine that Sam has made a terrible mistake and is arrested for cocaine possession. Perhaps they got the drugs from another kid at school or from a family member. But now Sam has a federal criminal record, which is likely to stick with them for life.

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This Note argues that federal courts should have the power to expunge juvenile records in cases like Sam’s. It advocates for legislation granting federal courts the power to expunge the criminal records of offenders who were under …

When Amazon Drivers Kill: Accidents, Agency Law, And The Contractor Economy, Keith Cunningham-Parmeter

William & Mary Law Review

Amazon vans and Uber drivers frequently crash into other cars. Despite the many injuries and deaths that result from these accidents, Amazon and Uber deny responsibility for such claims because they categorize their drivers as “independent contractors.” But this contractor defense distorts the basic rules of agency law. Over a century ago, courts crafted agency standards that forced businesses to pay for the harms that their workers caused. Since that time, American firms have attempted to skirt this rule by labeling their workers as “contractors” rather than as “employees.” Aware of this age-old tactic to avoid liability, courts historically built …

Reparative Citizenship, Amanda Frost

William & Mary Law Review

The United States has granted reparations for a variety of historical injustices, from imprisonment of Japanese Americans during the Second World War to the Tuskegee syphilis experiments. Yet the nation has never considered reparations for 150 years of discriminatory immigration and citizenship policies that excluded millions based on race, gender, and political opinion—including some who are alive today. This Article argues that the United States can atone for these transgressions by granting “reparative citizenship” to those individuals and their descendants, following the lead of several European countries who have recently provided such relief for those wrongly expelled or excluded in …

Press Play To Presume: The Policy Benefits Behind The Trademark Modernization Act's Resurrection Of The Irreparable Harm Presumption In False Advertising Cases, Daniel Stephen

William & Mary Law Review

Part I of this Note provides background information on the history and principles surrounding injunctions generally, the Supreme Court’s rulings in eBay and Winter, federal courts’ rulings after these decisions, and the Trademark Modernization Act of 2020. Part II presents anti-presumption advocates’ arguments against the presumption due to longstanding equitable concerns and because, in their view, requiring a showing of irreparable harm is not too difficult. Lastly, Part III discusses why the irreparable harm presumption in the TMA serves as beneficial policy by presenting counterarguments to anti-presumption reasoning and additional benefits of the presumption.

This abstract has been taken …

The Summary Judgment Revolution That Wasn't, Jonathan Remy Nash, D. Daniel Sokol

William & Mary Law Review

The U.S. Supreme Court decided a trilogy of cases on summary judgment in 1986. Questions remain as to how much effect these cases have had on judicial decision-making in terms of wins and losses for plaintiffs. Shifts in wins, losses, and what cases get to decisions on the merits impact access to justice. We assemble novel datasets to examine this question empirically in three areas of law that are more likely to respond to shifts in the standard for summary judgment: antitrust, securities regulation, and civil rights. We find that the Supreme Court’s decisions had a statistically significant effect in …

"Solo En Inglés": Using Section 208 Of The Voting Rights Act To Combat Modern Literacy Tests, Katie Kitchen

William & Mary Law Review

This Note asserts that section 208 of the VRA [Voting Rights Act] plays a vital role in protecting equitable access for limited English proficient (LEP) voters to cast their ballot. It does so by (1) providing background on protections in the VRA for LEP voters, (2) proposing that section 208 fills the gap left by other provisions of the VRA, and (3) offering recommendations for using section 208 effectively. These recommendations will include (1) amending section 208, (2) furthering education, and (3) increasing individual state actions. Lastly, this Note will argue that section 208 should serve as a model for …

The Nightmare Of Dream Advertising, Dustin Marlan

William & Mary Law Review

Advertisers are attempting to market to us while we dream. This is not science fiction, but rather a troubling new reality. Using a technique dubbed “targeted dream incubation” (TDI), companies have begun inserting commercial messages into people’s dreams. Roughly, TDI works by: (1) creating an association during waking life using sensory cues (for example, a pairing of sounds, visuals, or scents); and (2) as the subject is drifting off to sleep, the association is again introduced with the goal of triggering related dreams with related subject matter. Based on a 2021 American Marketing Association survey, 77 percent of 400 companies …

Why (And How) The Constitution Should Protect Prisoners From Gratuitous Disclosure Of Their Hiv/Aids Status, Dillon Schweers

William & Mary Law Review

This Note is not the first to advocate for prisoners’ constitutional privacy rights concerning their HIV/AIDS status, but it is the first to focus on isolated incidents of disclosure rather than general policies that tend to lead to disclosure like mandatory testing or segregation based on HIV/AIDS status. This Note argues that the Fourteenth Amendment’s Due Process Clause should protect prisoners from isolated disclosures, meaning prisoners should have a § 1983 cause of action against guards or other prison officials who disclose their HIV/AIDS status in a gratuitous manner.

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The proceeding section of this Note, Part I, details the …

Election Subversion And The Writ Of Mandamus, Derek T. Muller

William & Mary Law Review

Election subversion threatens democratic self-governance. Recently, we have seen election officials try to manipulate the rules after an election, defy accepted legal procedures for dispute resolution, and try to delay results or hand an election to a losing candidate. Such actions, if successful, would render the right to vote illusory. These threats call for a response. But rather than recommend the development of novel tools to address the problem, this Article argues that a readily available mechanism is at hand for courts to address election subversion: the writ of mandamus. This Article is the first comprehensive piece to situate the …