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Chris Creech Award
No full textFor Service and Dedication to William & Mary Law Schoolhttps://scholarship.law.wm.edu/wmlsawards/1002/thumbnail.jp
\u3cem\u3eBrown\u3c/em\u3e Now: The Surprising Possibility of Progressive Reform
Full text linkFor four decades, the Supreme Court has engaged in a determined, systematic, and successful effort to transform and tame Brown v. Board of Education. But there is a surprising counterweight to this standard narrative. If one takes modern doctrine seriously, the Supreme Court’s refashioning of Brown has the potential to support some progressive goals. The modern Court’s decisions provide a basis for upholding race-conscious but facially neutral measures that promote racial diversity, striking down legacy admission standards in colleges and universities, and strictly scrutinizing laws that discriminate based on sexual orientation. The last Part of this Article speculates about whether modern doctrine should be taken seriously
With Amici Like These...
No full textWelcome back to Making the Case! After a brief hiatus, Senator Whitehouse is back for a second season of his podcast, which uncovers the decades-long effort to capture and control our Supreme Court. During Trump 2.0, it’s more important than ever to shine a light on the nation’s highest court.
In this episode, Senator Whitehouse is joined by Professor Allison Orr Larsen and Professor Paul Collins, experts on amicus briefs and their (lacking) disclosure requirements
Why You Cannot Find a Swing Justice When You Really Need One
Full text linkFrom Richard Nixon’s 1972 appointment of swing Justice Lewis Powell until Donald Trump’s 2018 appointment of Brett Kavanaugh (to replace swing Justice Anthony Kennedy), the swing Justice ruled the roost. Sometimes voting with the Court’s conservatives and other times with its liberals, the swing Justice often cast the deciding vote and often embraced a sui generis middle ground. Those days now seem like a distant memory. An ideologically simpatico majority coalition drives the post-2018 Roberts Court (especially after Justice Amy Coney Barrett filled Justice Ruth Bader Ginsburg’s seat in 2020). In this Article, I will use the Court’s affirmative action in higher education cases to better understand why the swing Justice was pivotal from 1972 to 2018, why there are no swing Justices on the post-2018 Roberts Court, and why the swing Justice will not return. In so doing, I will connect the demise of the swing Justice to the simultaneous rise of party polarization and the conservative legal movement. I will also explain why this linkage of party and ideology did not begin until 2010 and how it is that this linkage could contribute to the eventual packing of the Court. Swing Justices may be critical to the survival of a nine Justice Court, but these “Super-Justices” cannot withstand the kryptonite of party polarization.
This abstract has been taken from the author\u27s introduction
Home Equity Theft: A Right Without a Just Remedy
Full text linkSeveral local governments throughout the country have confiscated homeowners’ real property for overdue real property taxes, sold those properties to investors at a discount, and pocketed millions of dollars in profits from the sales. The victims of such “home equity theft” are disproportionately elderly, African American homeowners in gentrified urban communities. One such victim, Geraldine Tyler, a vulnerable ninety-four-year-old African American woman living in a nursing home, claimed that the government’s taking of her property’s value violated the U.S. Constitution. In response, both a federal district court and a federal appellate court denied her claim, declaring that she lacked a cause of action. However, the U.S. Supreme Court in Tyler v. Hennepin County held that Ms. Tyler does have a cause of action, based on the Fifth Amendment’s Takings Clause, noting that the state’s enabling statute effected a “classic taking.”
This essay argues that the Tyler Court failed to provide Ms. Tyler with a just remedy as dictated by the U.S. Constitution, as well as by a fundamental principle of common law jurisprudence, which states that for every right, there is a remedy (hereinafter “the rights/remedy principle”)
Executive Watch: Zick on Executive Orders and Official Orthodoxies
Full text linkDuring his first term as president, Donald Trump signaled that he was not committed to pluralism and expressive liberty when it came to matters like patriotism, public protest, and other forms of dissent. During his second term, Trump has issued multiple executive orders that attempt to impose official orthodoxies or understandings regarding race, gender, patriotism, and other subjects.
As we have seen, these edicts are not merely symbolic. The executive orders call for agency actions and criminal investigations, and place hundreds of millions of dollars in federal funding at risk. The orders have affected what universities teach, which immigrants can migrate to or remain in the United States, which books students and soldiers can read, which version of American history is considered acceptable, which clients law firms can represent, who can serve in the U.S. military, and what kind of scientific research will be allowed.
This abstract has been taken from the author\u27s introductory paragraphs
Executive Watch: The Breadth and Depth of the Trump Administration\u27s Threat to the First Amendment
Full text linkGiven the Trump administration’s continued and varied assaults on the First Amendment, it is vital to monitor those attacks and then realize the gravity of the “sweeping and draconian sanctions ” imposed by unconstitutional executive fiat. Vigilance is especially important, as New York Times investigative reporter Michael S. Schmidt has noted, because “Mr. Trump has employed tactics including lawsuits, executive orders, regulations, dismissals from government jobs, withdrawal of security details and public intimidation to take on a wide range of individuals and institutions he views as having unfairly pursued him or sought to block his agenda.”
Mindful of such matters, this installment of “ Executive Watch ” by professor Timothy Zick provides the most comprehensive and informed account of the current threats facing us up to now
George Wythe Award
No full textFor Exceptional Character, Leadership, and a Spirit of Selfless Service by a Member of the Graduating Class.https://scholarship.law.wm.edu/studentplaques/1131/thumbnail.jp
Goldilocks and the Three Frameworks: An Argument for a Hybrid Approach to Regulating Fusion Energy Systems
No full textPart I will explore the beginnings of nuclear power regulation in the United States by outlining the short lifespan of the Atomic Energy Commission (AEC), the NRC’s [Nuclear Regulatory Commission\u27s] predecessor, and why the Agency’s two competing directives of protecting public safety and encouraging industry development eventually led to its dissolution in 1974. The subsequent separation and assignment of these directives to newly created agencies— safety to the Nuclear Regulatory Commission and development to the Energy Research and Development Administration—demonstrates that the NRC’s primary statutory directive is regulating nuclear power safely. Part II will delve into the early days of the NRC and analyze the effects of the AEC’s laissez-faire, industry-first approach to the regulation of nuclear power and its long-lasting ramifications on America’s public opinion toward nuclear fission reactors following the most infamous nuclear disaster in American history, the Three Mile Island accident. Part III briefly discusses NEIMA and how the Act brought nuclear fusion into the focus of future regulation and introduces the three fusion regulatory schemes proposed by the NRC staff in response to NEIMA. Part IV first analyzes the major positive and negative aspects of each fusion regulation approach and then utilizes historical examples and the potential dangers of fusion energy systems to critique the NRC Commissioners’ ultimate decision to place regulatory clarity and consistency over not only public safety and public perception of emerging technologies, but also regulatory flexibility for potential future innovations in fusion technology. Will fusion be seen as the future of energy as we know it or just another nuclear disaster waiting to happen?
This abstract has been taken from the author\u27s introduction
Camera-Shy Courtrooms: Balancing Extraordinary Transparency and the Appearance of Justice
No full textHigh-profile trials alert us to the dissonance between transparency and accountability in the federal judiciary. This Note will explore this tension and argue that when policymakers respond to calls for “extraordinary transparency,” transparency should be subordinate to fairness. Part I will discuss the principles underlying public adjudication and how, through various constitutional challenges, the limits of public access have changed over time. Analyzing modern high-profile trials, Part II will demonstrate how those very principles are inadequately protected in jurisdictions that allow unrestrained public access to the courtroom. Part III will describe how transparency, when conflated with accountability, threatens procedural due process rights. Finally, Part IV will provide practical considerations for federal courts and policymakers navigating calls for extraordinary transparency, which prioritize ensuring fairness while accounting explicitly for the limits of transparency.
This abstract has been taken from the author\u27s introduction