Law Commons^™

The Splintering Of American Public Law, Marco Basile

University of Chicago Law Review

Constitutional tradition has never mattered more for arguing about what the Constitution means. Yet the very idea of a constitutional tradition presents a shape-shifting target. Rather than an entirely distinct body of law, early U.S. constitutional law mixed and blurred with the law of nations in a broader category of “public law” that, unlike other forms of law, sought to govern the sovereign state itself through not only legal institutions but also political structures and actors outside courts.

This Article argues that U.S. constitutional law and international law diverged after the Civil War when courts came to apply them differently …

In Search Of A Judicial Taking, Coby Goldberg

University of Chicago Law Review

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, a plurality of the Supreme Court held that the Takings Clause applies to the judiciary as it does to any government actor. In the more than fifteen years since, none of the sixty courts to consider judicial takings claims have found a judicial taking. This Comment provides the only comprehensive analysis of the judicial takings case law since Stop the Beach in order to determine why no court has found a judicial taking. Based on this analysis of the case law, this Comment suggests that finding a judicial taking …

Private Equity’S Viable Path To College Athletics Investment: Potential Entity Mechanisms And Antitrust Considerations, Michael Llg

Vanderbilt Journal of Entertainment & Technology Law

The recent House settlement with the National Collegiate Athletic Association was another blow to traditional collegiate governance in an age of uncertainty in college athletics. In the wake of the House settlement and other recent decisions, multiple private equity funds have shown interest in investing on a school-by-school basis or buying out dozens of teams to form a new commercialized league in select sports. Many questions remain with the viability of private investment in college athletics. Unlike traditional private equity investment, schools are 501(c)(3) nonprofit organizations typically operating within an athletic conference. This creates an additional hurdle to for-profit investing …

A Speaker-Based Approach To Content Moderation: The Case Of Livestreaming, Maayan Perel

Vanderbilt Journal of Entertainment & Technology Law

Livestreams on social media represent a unique form of User-Generated Content. Delivering events and experiences in real time, while turning passive listeners into an involved audience, livestreaming facilitates users’ engagement and participation. Streaming promotes freedom of expression and facilitates diversity and pluralism in news reporting. It further allows users to maintain truth and authenticity in a potentially fabricated realm of Generative Artificial Intelligence (AI). Speakers are eager to capitalize on the instantaneous nature of livestreaming; some are using it to document newsworthy events or promote business interests, and others exploiting it by spreading unlawful and malicious content in pursuit of …

Agentizing Privacy Preferences Without Privatizing Data Protection Policy, Frank Pasquale, Vanna Carter

Cornell Law Faculty Publications

This essay explores how consumers might exercise newly restored agency in a digital environment increasingly shaped by generative AI. Rather than expecting consumers to read privacy-related terms of service, policymakers should encourage the emergence of Automated Consumer Agents (“ACAs”) capable of interpreting privacy provisions and acting on behalf of users according to their stated preferences. These systems could automatically reject objectionable forms of data extraction, translating consumer values into actionable decisions in online transactions.

Despite this promise, the rise of ACAs would also present new problems. Without supportive policy and legal frameworks, agentization of privacy preferences could itself reproduce or …

Tort Immunity Waiver For Vaccine Injuries: Ethical And Legal Perspectives, Tammy W. Cowart, Gregory L. Bock

Accounting, Finance, Information Systems, and Business-Law Faculty Publications and Presentations

The COVID pandemic highlighted the importance of vaccine development and availability worldwide. Operation Warp-Speed in the United States accelerated vaccine production by several major pharmaceutical manufacturers, averting some of the normal administrative processes. The result has been a financial windfall for those companies. Some recent data has shown that the COVID vaccine can cause negative side effects in some patients. There are provisions in U.S. law that allow victims of vaccine injuries to recover compensation through the court system. However, even then tort remedies are limited by federal law. Since the review process was rushed during the pandemic, should tort …

Not Born A Democracy: Constitutional Preconditions, Martha Minow

William & Mary Law Review

Beneath growing perceptions of constitutional crisis and democratic fragility in the United States lies a fundamental conundrum. Critical preconditions for effective self-government are either weak or missing in action, and our constitutional system, at least for now, stands in the way of actions to strengthen or build those preconditions. This Article focuses on three essential predicates for constitutional democracy that face jeopardy: education, reliable news, and security against lethal violence. As basic as these elements may be, repeated efforts to secure a federal constitutional right to education have failed in the courts. Because of a confluence of legal, technological, and …

Border Decriminalization As A State Project: Lessons From Marijuana And Assisted Suicide Legalization Across The United States, Victor C. Romero

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

My prior work argued for the decriminalization of border crossings without proof of specific intent to violate another law (like drug trafficking), which is even less likely to happen now than it was when the piece was published, given the current presidential administration’s zealous deportation strategy and Congress’s seeming acquiescence. As such, I advocate for a second-best solution involving federal-state cooperative agreements wherein border states abutting both Mexico and Canada are given the option by the federal government to pass local legislation decriminalizing border crossings into their states as their communities desire. To the extent that the current presidential administration …

The Demonization Of America's Economic Engine, Ediberto Roman

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

In a 2013 book entitled Those Damned Immigrants: America’s Hysteria Over Undocumented Immigration, I warned of a conservative political trend that I believed would lead to an all-out assault on undocumented immigrants. This trend occurred despite the fact that these immigrants are critical economic boons to our economy.

On his first day in office in 2025, President Trump made the book’s warnings prophetic. That day, President Trump issued a series of executive orders, including 10 focused on limiting entry into the United States and questioning many who previously entered the United States legally. These orders include, 1) enhanced deportation …

Getting There From Here: Reflecting On Compassionate Migration Policy, Steven W. Bender

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

Having written about Latinx issues for more than three decades, with a focus on immigration policy for at least the last two decades, I see no middle ground in this time of Trump. Those who relish hurt and hate, and those scholars who wrote the kindling for that bonfire, must be basking in the glow of their handiwork. Those of us who I claim are on the right side of history must search through the ashes for hope—the where, when, and how to nurture humanity on scorched ground. Counting myself among those searching for hope, I acknowledge the indulgence offered …

Countering The Criminalization Of Solidarity: An Analysis Of Legal Frameworks Proposed To Protect Humanitarian Aid For Migrants And Asylum Seekers, Katherine E. Smart

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

Thousands of migrant fatalities are reported each year all across the globe, and as staggering as current numbers are, they are likely an undercount. These deaths are a direct result of government policies that funnel migrants into dangerous routes through deserts and seas to deter immigration. Further, when individuals and groups step forward to provide immediate aid to migrants—such as food, water, shelter, first aid, and search and rescue (SAR)—they are often targeted by intimidation, harassment, discipline, and even criminal prosecution. Thus emerges a question: what legal framework can protect the rights of humanitarian aid workers acting in solidarity with …

"America's Paradise": The Enduring Costs Of Imperialism And Colonial Rule--A Case Study Of The U.S. Virgin Islands, Diamond C. Ash

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

As the United States prepared to enter World War I, it secured another strategic territorial holding in the Caribbean. Six days before declaring war on Germany, the United States purchased the Virgin Islands (USVI) from Denmark—not for economic development or the welfare of its people, but as a military asset. St. Thomas, St. Croix, and St. John became a strategic outpost for naval dominance and national security.

Like other unincorporated U.S. territories, the USVI’s governance was shaped by imperial ambitions and reinforced through legal structures that preserved federal dominance. In practice, this created a system of colonial rule in which …

Extended Detention Without Due Process: Resolving A Circuit Split In Favor Of Detained Noncitizen Migrants’ Due Process Rights, Jacob E. Maguire

Dickinson Law Review (2017-Present)

Less than two months before American voters cast their ballots in the 2024 presidential election, a circuit split emerged regarding whether the Due Process Clause allows noncitizens with certain criminal convictions to be held indefinitely throughout their deportation proceedings without the right to a bond hearing. Specifically, the First, Second, and Third Circuits disagree with the Eighth Circuit over whether noncitizens may be detained for the duration of their deportation proceedings under Section 236(c) of the Immigration and Nationality Act (INA) without the right to a bond hearing. In January 2025, Congress subjected additional classes of noncitizens, including those who …

Contracting For Consumer Trade Compliance, Christine Abely

Dickinson Law Review (2017-Present)

Export compliance is becoming increasingly important for parties required to abide by U.S. law, including many online sellers of consumer products. These retailers’ contractual terms with their customers set forth a number of provisions governing the relationship between them, including those which deal with arbitration, indemnification, disclaimer of warranties, and other issues. Many such agreements also purport to create obligations on the part of the consumer as to export control and sanctions compliance relative to the products they purchase. These contract provisions attempt to do so, however, in often markedly different ways, and with language that may leave notable gaps …

Governance In The Absence Of Government, Tracy H. Pearl

Dickinson Law Review (2017-Present)

Artificial intelligence (AI) is advancing at an unprecedented pace, with generative systems exerting growing influence over social, economic, and political life. While AI offers opportunities for innovation and efficiency, it also poses risks ranging from misinformation and job displacement to existential threats if highly autonomous systems evade human control. Across industry, government, and civil society, there is broad consensus that AI requires oversight. Yet traditional U.S. regulatory approaches face six significant barriers: (1) technology outpacing legislation, (2) limited AI expertise among policymakers, (3) regulatory capture, (4) political gridlock, (5) outdated governance structures, and (6) the inherent complexity of AI. Combined …

Sovereign Indignity And Immunity, Chun Hin Jeffrey Tsoi

Dickinson Law Review (2017-Present)

Sovereign immunity, even if not understood as a monarchical relic, embodies the notion of indignity for a government having to answer to allegations of transgressions. This Essay proposes an argument to challenge the doctrine’s theoretical basis, especially with respect to the federal government in federal court. But there is first a threshold question to be answered: has the doctrine of federal sovereign immunity been practically mooted by the “death” of Bivens v. Six Unknown Named Agents? One needs an express cause of action to sue the federal government absent Bivens, and if one has an express cause of action, under …

Rethinking Appeals In Arbitration, Abdi Aidid

Dickinson Law Review (2017-Present)

The question of whether arbitration awards should be appealable, or at least subject to enhanced judicial review, is heavily contested in the scholarly literature. This Article explains that arguments favoring or rejecting appellate review have focused on stylized conceptions of arbitration either as a species of contract or as a substitute for adjudication. This Article argues that these two dominant approaches—termed here the “contractarian” and “arbitration-as-adjudication” models—fail to adequately describe modern arbitration practice. Thus, any argument for or against appellate review that rests heavily on either of the two conceptions is unconvincing. Instead, this Article argues that the question of …

Thou Shalt Not Castrate: The Conflict Between Louisiana’S Surgical Castration Law And The Principles Of Medical Ethics, Morgan Ambrosecchia

Dickinson Law Review (2017-Present)

In 2024, Louisiana became the first state to permit courtordered surgical castration for sex offenders who have been convicted of certain sex crimes against children. Under the law, an offender who refuses to submit to the procedure will face an additional three to five years in prison without the possibility of parole, probation, or suspension of sentence. The court’s order is contingent on confirmation by a court-appointed expert that the offender is an “appropriate candidate for surgery.” However, the statutory language is vague and does not clearly define who can serve as an expert nor does it define the scope …

“This One Time At Band Camp”: Reexamining The Use Of “War Stories” In Trial Advocacy Pedagogy, Todd A. Berger

Dickinson Law Review (2017-Present)

“War stories,” i.e., the retelling of an event from the teacher’s experience as a practicing lawyer to illustrate a teaching point, have long been a part of law school pedagogy. In this regard, faculty teaching doctrinal courses recognize that the use of war stories can work as an effective teaching methodology. Interestingly, however, the use of war stories to teach trial advocacy has proven far more controversial. To that end, the most dominant approach to teaching trial advocacy in American law schools, known as the National Institute of Trial Advocacy (NITA) method, embraces an approach to war stories that ranges …

Venturing Into Health, Rachel E. Sachs

Fordham Law Review

In recent years, the landscape of venture capital (VC) investment in healthcare technologies has been altered by the introduction of new types of VC firms: those that have emerged from hospital systems and health insurers. However, the legal literature has not yet analyzed these new VC firms, the role they may play in healthcare innovation, and how innovation law and policy ought to consider their involvement. Hospital system and health insurer VC firms operate very differently than traditional VC firms, even those that have historically developed healthcare specializations. Instead of simply investing capital into start-up firms, hospital system and health …

Table Of Contents (V. 50, No. 1)

William & Mary Environmental Law and Policy Review

No abstract provided.

Subsistence As Resistance: Reconceptualizing The Theory Of Progressive Property To Incubate Resistance To Consumerism, D.S. Pensley

William & Mary Environmental Law and Policy Review

This Article reconceptualizes the theory of progressive property by juxtaposing legal theory with the empirical study of a subsistence economy in the U.S. Subarctic. Progressive property holds that owners are bound by obligations to non-owners as a means to achieve human flourishing. The theory is constrained by the primacy of private property in Western thought, and it also lacks the ecological ethic required for sustainability. Drawing from my fieldwork, I suggest that human flourishing must additionally incubate resistance to consumerism.

Federal statute, 16 U.S.C. § 3113, defines subsistence as “the customary and traditional uses by rural Alaska residents of wild, …

Let's Bee Pragmatic: The Economic Case For Neonicotinoid Regulation In Conservative States, Annie Rosenstein

William & Mary Environmental Law and Policy Review

The importance of bees in our ecosystem and to our food system in the United States cannot be overstated. In fact, 35% of global crop production depends on bees and other pollinating insects. Pollinators not only influence the production of many foods that we hold dear and rely on, such as apples, chocolate, potatoes, and coffee, but also influence the quality of these products.

Currently, the most insidious threat against bees in the United States is neonicotinoid pesticides (neonics). While neonics are effective at killing the target populations of beetles, aphids, and flies, they are equally effective at killing pollinators, …

Environmental Bankers: States Are Billing Fossil Fuel Companies For Extreme Weather Disasters, Kelly A. Adam

William & Mary Environmental Law and Policy Review

For decades, common law has been the pathway to remediation for environmental tragedies. Victims of traditional environmental harms can pursue justice through legal challenges like nuisance, negligence, and violations of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). However, climate change–induced natural disasters have led to the normalization of the “Act of God” exception; a policy provision commonly used in insurance law that excludes coverage for damage caused by unforeseeable natural disasters. Even so, real cities suffer the consequences of the real harm, whether insurance accepts it or not; so, who bears the burden of funding the recovery?

Maryland, …

Masthead

Washington and Lee Law Review

No abstract provided.

Table Of Contents

Washington and Lee Law Review

No abstract provided.

The Lone Dissent, Grant Christensen, Anne Mullins

Washington and Lee Law Review

What can be learned when a Supreme Court Justice decides to write a lone dissent? There exists a powerful set of incentives for Supreme Court opinions to achieve consensus. Although closely divided cases grab news headlines, unanimous opinions are actually the most commonly issued judicial alignment, and cases in which a single Justice dissents are the most unlikely. Despite voluminous academic discussion of judicial behavior, no legal scholarship has focused on the lone dissent. This Article is designed to insert consideration of lone dissenting opinions into the broader discussion of judicial behavior.

Looking at the set of Supreme Court opinions …

Look What You Made Me Do, Russell M. Gold

Washington and Lee Law Review

We have understood for centuries that crime is both the product of social forces and individual choice. We know now that crime is affected by economic deprivation, addiction, trauma, and mental health issues. But American criminal legal processes hide this reality by coercing defendants into expressing a profoundly simple narrative: crime is solely individual choice to do wrong. This coerced narrative finds defendants during a plea colloquy standing up in court saying that they are pleading guilty because they are guilty and for no other reason. A defendant who goes off-script to tell the judge that they have been repeatedly …

Double Dosing: How Brand-Name Pharmaceutical Manufacturers Manipulate Patent Rules To Extend Market Exclusivity, Elizabeth Hertzberg

Washington and Lee Law Review

A robust patent system is important for spurring innovation, but it is not without risk. Because a patent owner has exclusivity over the patented subject matter for a specific term, there is incentive to extend that monopoly however possible. Identical subject matter is unpatentable, but obvious variants of an existing patent may be allowed if the applicant agrees to the same expiration date for both patents. This agreement is called a terminal disclaimer. While patents tied together with terminal disclaimers may not necessarily lead to unjust patent term extensions, an army of terminal disclaimers directed at one invention presents a …

Usc Lawyer, Fall 2025, University Of South Carolina Joseph F. Rice School Of Law

Law School Alumni Magazines

No abstract provided.