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The First Amendment and the Commencement Provocateur
No full textThis Article explores an untheorized area of First Amendment doctrine: students’ graduation speeches at public or private universities that embrace free speech principles, either by state statute, state constitutional law, or internal policy. Responding to recent graduation speech controversies, it develops a two-tier theory that reconciles a multiplicity of values, including students’ expressive interests, universities’ institutional interests in curating commencement ceremonies and preventing reputational damage and political reprisals, and the interests of captive audiences in avoiding speech they deem offensive or profane. The Article challenges the prevailing view that university students’ graduation speeches implicate individual First Amendment rights. It develops a site-specific understanding of the ritualistic sociology of the university commencement speech, which the Article argues is firmly within the managerial purview of the university. But it also argues that heavy-handed administrative regulation of student graduation speeches has the potential to undermine the academic freedom of students and professors. Reflecting on the history of the university commencement speech in the American intellectual tradition, it urges university administrators to exercise their authority to regulate speeches through transparent standards, a longitudinal view, and collaborative negotiation with student speakers. It concludes by discussing the conceptual dangers of turning the First Amendment into a metonym for every instance of speech abridgment within a managerial sphere
Hunting for Meaningful Boundaries: Virginia\u27s Dog Retrieval Statute and Defining \u3cem\u3ePer Se\u3c/em\u3e Regulatory Takings Under \u3cem\u3eCedar Point\u3c/em\u3e
No full textThis Note will begin with a summary of the [Cedar Point Nursery v. Hassid] decision. Next, it will provide an overview of Virginia’s dog retrieval statute and discuss a recent case challenging the same. The Note will then analyze the statute by applying the Cedar Point standard, with special attention given to the exceptions, to determine if the law constitutes a per se taking. Finally, the Note will conclude by exploring some implications of the analysis, again emphasizing the effect of the amorphous exceptions.
This abstract has been taken from the author\u27s introduction
An Interview with Margaret Spencer
No full textI enjoyed talking to the other professors about what\u27s new, what\u27s going to happen in the future, where are we now, what changes should we make? Why should we make these changes? What laws that existed in the past need to be changed? We talked about innovative theories and that\u27s what I enjoyed most, I think, about my experience with my colleagues at William & Mary. They were always open, always objective, and always supportive. -- Margaret Spencer
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Judge Margaret Spencer was interviewed on March 27th, 2025, in the William & Mary Media Center’s Production Studio. She begins the interview by explaining that she grew up with no interest in the legal field, but with a passion for helping others and serving the community. Judge Spencer then reflects on her time at law school at the University of Virginia (UVA) where she lived on campus and was one of only a few African American students, and how she helped start the Black Law Students Association at UVA. She then recounts her time working for Legal Aid and the Equal Employment Opportunity Commission (EEOC), again feeling isolation from the people around her, but thriving in her ability to assist and care for others through her legal work. She then moves on to discuss her time at William & Mary Law School as a professor, connecting with students and faculty to build ideas and further service to the community. Judge Spencer then transitions to speak about her time as a judge, emphasizing her work as it relates to treatment courts which she still oversees today.https://scholarship.law.wm.edu/oralhist_all/1018/thumbnail.jp
Michael Hillinger: Mock Trial
No full textSo, John Pagan, teaching appellate advocacy, and Fred Schauer, who was teaching con law, decided to do a mock argument which was designed to show us what to do, but also what not to do... And that was, from my point of view, one of the best things that they could have done is to show us - not just tell us how to do it or not to do it - but show us how to do it.” -- Michael Hillinger, Class of 1983 and Former Faculty, on mock trial as a teaching tool
Rose, Anne. “Work Over, Fun Begins; Mock Trial Mocked.” The Advocate, vol. 12, no. 12, 23 April 1981, p.1.
In April 1981, William & Mary law students and faculty put on a mock trial, recounted in this student newspaper article as if it were a real event. The murder trial, though over the top and humorous, was also an opportunity to teach students about the unpredictability of litigation. Michael Hillinger played the role of expert witness, Hungarian coroner Attila Somkuthy, a combative and nonresponsive doctor. His only answer to the central question, “What was the victim’s cause of death?” was “She was shot.” Despite the chaotic prosecution, the defendant was ultimately found guilty and “sentenced to life imprisonment in the law library.”
Listen to Michael Hillinger\u27s oral history online.https://scholarship.law.wm.edu/oralhist-exhibit/1016/thumbnail.jp
J.R. Zepkin: Log Cabin Law Office in Williamsburg
No full text“That log cabin. I remember doing a real estate closing one day and papers scattered on my desk and everything, and clients signing the papers. I looked and little things were crawling across the desk. Termites... We’re encouraged on the first day of classes to introduce yourself to your class. And I always tell them, you go through your whole life you won’t find another lawyer that practiced in a log cabin... it’s a lot more fun to talk about than it was to practice law in.” -- J.R. Zepkin, Class of 1965 and Former Adjunct Faculty, on his first law office
J.R. Zepkin in his law office on Richmond Rd., late 1960s. Courtesy, J.R. Zepkin.
The log cabin pictured here was located near the corner of Richmond Rd and Monticello Ave, close to where a Dunkin’ Donuts sits today. It was the first law office in which J.R. Zepkin (pictured) practiced after graduating, alongside fellow Law School alumni Hyman Wax and, later, John Stephens. The cabin itself was older and very dry, meaning they could not run heat after office hours – the first arrival in the morning had to turn the heat back on to warm the building for everyone. Even with the cold and the termites, Zepkin joked that the office was still preferable to the Law School’s original facilities in the basement of Bryan Hall.
Listen to J.R. Zepkin\u27s oral history online.https://scholarship.law.wm.edu/oralhist-exhibit/1009/thumbnail.jp
Antiracist Antitrust: Antitrust Enforcement as a Civil Right
No full text“Tryna’ make a dollar out of fifteen cents” is more than a genius hip-hop lyric, it is also a metaphor for a real-life economic problem. It is extremely difficult for Black communities to build wealth in America. While many factors contribute to the lack of economic growth, one overlooked area is the ineffective enforcement of the antitrust laws. Even though race and antitrust law have a history that has intersected since the American Civil War, antitrust enforcement has never prioritized improving the welfare of Black communities or other marginalized groups. This must change!
Instead of focusing solely on regulating tech titans or on breaking up digital platform monopolies, antitrust must shift its attention toward antiracism. This Article proposes how to do just that. It begins by telling the origin story of antiracist antitrust and its historical foundation. It is the first of its kind to uncover the 19th century connection between Senator John Sherman’s work on antitrust legislation and his work on the nation’s first civil rights laws. This storytelling also uses hip-hop lyrics to honor the tradition of exploring Black economic experiences through music. This Article also discusses two critical areas overburdened with competition problems: (1) labor market participation and (2) Black-owned businesses. It then suggests reframing Robert Bork’s consumer welfare standard to the most accurate reading, which requires an assessment of harm to Black communities. This Article ends with recommendations on how to enforce the antitrust laws through an antiracism lens, which includes banning discriminatory refusals to deal under the Clayton Act. It contends that, ultimately, antiracist antitrust enforcement will increase wealth in Black communities and the national economy while also promoting more competitive markets
The Law of Heredity -- \u3cem\u3eWhistelo\u3c/em\u3e, Whiteness and Whales
No full textThis Article reveals the impact of an early New York case upon science and law, raising questions about heredity that spurred evidentiary progress from maternal imagination to visual resemblance, and later from blood groups to DNA paternity testing. In the Jeffersonian republic, a dark-skinned man was charged with reputedly fathering the infant daughter of a mixed-race woman. However, to most witnesses this light-skinned child appeared to be the offspring of a White man. The trial of Commissioners of the Alms-House, vs Alexander Whistelo, a Black man, being a Remarkable Case of Bastardy (1808) became a cause célèbre in both law and medicine for its forensic debate on proving paternity long before modern discoveries. This famous courtroom drama raised puzzling questions about the inheritance of asserted racial characteristics. Over a dozen leading physicians offered their expert medical testimony. A decade later the same protagonists resumed their struggles over legal and scientific taxonomies in another epic conflict, Is a Whale a Fish? An Accurate Report of the Case of James Maurice against Samuel Judd (1818). Long overlooked in law review literature, these early cases jointly open a startling window displaying the complex influences of law upon the course of scientific inquiry. This Article argues that one enduring legacy of the Whistelo trial was the admission of exclusionary blood group testing to disprove paternity more than a century later. Furthermore, such challenging legal conflicts over parentage and heredity guided scientific researchers towards the discovery of the human genome by the late twentieth century. With DNA-based paternity testing now conclusive and ubiquitous, humankind owes a substantial debt to the illegitimate infant whose parentage was tried in the Whistelo case
Exporting Equity: Lessons from the Equal Credit Opportunity Act
No full textCredit functions as a fundamental gateway to economic mobility; however, questions arise regarding the legal and societal implications when an individual is denied access to such credit. In theory, fair lending principles dictate that equal access to credit is a legal right. The premise is reasonable but becomes convoluted when consumer credit is clouded by lender bias, resulting in credit discrimination. This Article presents a comparative perspective revealing a jurisdictional difference in legislation affecting equal access to credit between the United States and Canada. Specifically, this Article will focus on the American Equal Credit Opportunity Act (hereinafter ECOA) and whether an equivalent legislation comparable in Canada is needed to further protect consumer rights in financial services and credit relationships. Canada’s current legislative framework is failing to safeguard fair lending principles and meaningful access to financial services. The structural inequities and exclusion embedded within the financial system continue to create barriers for racialized and Indigenous communities. By failing to address these issues, economic justice and meaningful financial inclusion cannot exist.
With the advancement of technology and the accelerated growth in financial services, financial regulators are continuing to struggle to not only ensure fiscal stability, but also to understand unintended pitfalls produced by innovation. The intersection between these new modalities and discrimination is a critical concern for stakeholders. This has led to a renewed interest in ensuring consumer protection. However, the current regulatory system and the structural components governing consumer credit have been critiqued for failing to create a uniform national regime. The last few years have seen a resurgence of legislative interventions with respect to financial consumer protection, yet the one component not directly addressed is credit discrimination and financial bias within the meaningful extension of financial services
Pleasure & Pain in Intellectual Property
No full textIntellectual property produces pleasure. IP laws incentivize investment in popular culture, helping to ensure the viability of entertainment industries and the steady production of our favorite shows, cherished brands, and beloved celebrities. Across IP-heavy industries, creators cite the joy of writing, composing, coding, and experimenting as a motivation for countless hours in the office, studio, or lab. Nonetheless, in a broad range of settings, and across several areas of IP, courts have responded with hostility to personal accounts of pleasure in IP disputes. When a defendant admits to using IP because they are fans of the plaintiff, or because they wanted to share their love of popular culture, or because it was simply a lot of fun, courts cite such admissions as reasons for ruling against them.
By contrast, when parties to IP disputes cite not to joy, pleasure, or fandom, but instead to anger, pain, and adversity, courts are far more receptive to such motivations for copying. When a defendant asserts that they copied aspects of the plaintiff ’s work or brand because they felt alienated by it, or because they wanted to ridicule it, or because they wanted to insult the rightsholder, courts have embraced such motives as supporting fair use and free speech defenses. While sanctioning painful narratives may help artists expose the biases embedded in much popular culture, the judicial privileging of pain also has facilitated disempowering, mocking, blatantly hateful, or intentionally harassing portrayals of vulnerable individuals and communities. Moreover, by privileging pain over pleasure, IP law has limited the ability of marginalized groups—especially women, people of color, and queer people—to share their joy publicly.
This Article shows that courts routinely undervalue pleasure and overvalue pain when resolving IP disputes. This “pleasure taboo” discourages honesty in litigation, disconnects IP doctrine from real-world creative practices, and skews IP’s moral compass. Insults and derision emerge as archetypes of fair use and free speech, while fandom and joy become commodities for rightsholders to harvest and control