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Understanding \u3cem\u3eDobbs v. Jackson Women\u27s Health Organization\u3c/em\u3e: How the Modern Supreme Court Broke from Tradition and Changed the Original Meaning of Due Process
No full textWhat follows here describes and criticizes the modern liberal and conservative approaches to substantive due process. Part I shows how substantive due process came about in the mid-twentieth century as the union of two extant doctrines: incorporation and fundamental rights. Part II then describes how modern conservatism used the doctrine to arrive at the deeply rooted-in-history-and-tradition test and shows the deliberate reconfiguration of the jurisprudence during the latter twentieth century into the novel patchwork of the modern-conservative method applied in Dobbs. Part III offers a contrast, describing and explaining the traditional due-process analysis of medieval origin and the concept of ordered liberty it actualized. We are invited to juxtapose the deviant jurisprudence of the moderns against the tradition of reasoned judgment, and to imagine our recurring to the tradition from which America’s highest court has broken.
This abstract has been taken from the author\u27s introduction
An Interview with Bryant L. Sugg (part two)
No full textBecoming a judge was a big [achievement]. I mean, I love that. But see, I think, you talk to anybody who really knows me and it\u27s: judge is what I do. But judge isn\u27t who I am. --Bryant Sugg
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In this oral history, dated March 19, 2025, the Honorable Judge Bryant L. Sugg gives us an overview of his life, time at William & Mary Law School, and decades-long career as a Virginia judge. We begin with a discussion about his upbringing and how his father, the late Honorable Irvin Douglas Sugg, Sr., influenced his career path. From the law school, Judge Sugg shares stories about playing flag football with professors, memories of getting cold-called in class, and his reputation as a “lobby lizard.” From there, he discusses his “friendly rivalry” with his nephew, the Honorable David J. Whitted, and the legacy Judge Sugg started at the law school, with three generations of his family attending.https://scholarship.law.wm.edu/oralhist_all/1021/thumbnail.jp
Dave Douglas: Desegregation and Civil Rights Law
No full text“Charlotte went through the largest school desegregation plan in the United States when I was a junior in high school and senior in high school… And this was a huge part of my life… and I knew...when I was in graduate school, I want to write a book about what happened in Charlotte-Mecklenburg. And that was my first book, and I finished it when I was at William & Mary… I wasn\u27t really writing much of it until I got to the law school. But when I had time to do that, that was my first project. And so that began…a strong interest in civil rights law.” -- Dave Douglas, Dean and Professor Emeritus, on his first book
Douglas, Davison M. Reading, Writing, and Race: The Desegregation of the Charlotte Schools. Chapel Hill: University of North Carolina Press, 1995.
Davison Douglas published this book after joining the faculty here at William & Mary Law School, but research for it began well before he thought to pursue a career in law. Douglas was student body president at his high school in Charlotte, North Carolina when the district began integrating its schools. He described the discussions they had about integration as highly impactful and wrote his doctoral dissertation on the topic. It was not until joining the law faculty that Douglas was able to finalize this research for publication, and he credits the project with beginning his interest in civil rights law.
Listen to Dave Douglas\u27s oral history online.https://scholarship.law.wm.edu/oralhist-exhibit/1012/thumbnail.jp
Rebuilding the Foundation: Addressing a Crisis in Juror Participation
No full textCourts are experiencing dramatic decreases in juror response and appearance rates, threatening the future of jury trials and the legitimacy of the American justice system. Effective strategies exist to reverse this trend, if justice system stakeholders are willing to employ them
Systemic Exploitation of Farmworkers: The Depreciation of H-2A Farmworkers\u27 Wages and the Effect on Similarly Situated Domestic Jobs
No full textImmigration has played a key role in helping the U.S. economy grow and provide labor to a variety of industries. One of the key pieces of this growth has been the H-2A visa program, which allows farm workers from other countries to come to the United States to help farmers plant, grow, and harvest. Yet, the H-2A program is riddled with problems that give complete power to the farm owner and strip the farm worker of any ability to stop a farm owner’s abuse. Because of this power, farm owners can take advantage of their H-2A workers, paying them lower wages and making them work extreme hours, which goes against the policy rationale of balancing the protection of American laborers with the promotion of international commerce. This Note argues that the government must do more to empower and protect H-2A visa holders to improve their work standards, so it does not continue to adversely affect similarly situated jobs. This Note also argues that the government must increase the wages of migrant farm workers, provide migrant farm workers lateral options, and, before authorizing an H-2A visa, ensure that domestic farmworkers in the area are unavailable for the position to empower and protect migrant farm workers and similarly situated domestic workers
America\u27s Paradise : The Enduring Costs of Imperialism and Colonial Rule--a Case Study of the U.S. Virgin Islands
No full textAs 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 political and economic power remained concentrated in Congress. Although formal colonial rule ended, the mechanisms sustaining political subordination and economic dependence remained intact.
This Note argues that the acquisition of the USVI was more than a wartime necessity; it was an assertion of imperial power. The islands’ current territorial status is not merely a neutral administrative framework but a direct extension of imperial governance. Through congressional control under the Territorial Clause and federal oversight of key economic and political matters, the United States has preserved a system that constrains the territory’s capacity for genuine self-determination. This Note examines the historical and legal foundations of that system and its modern implications, demonstrating how the USVI’s status reflects the enduring costs of American imperialism
Original Public Meaning and the Rule of Recognition
No full textFramer intent no longer possesses the same cachet it once held. But Framer influence still matters for public meaning originalism, particularly for communications like The Federalist Papers, in which Alexander Hamilton, John Jay, and James Madison marketed the work of the Philadelphia Constitutional Convention to state ratifying conventions and the constituencies they represented. Contemporary originalists posit that what the Constitution meant to this public audience at the time of ratification is cemented in time forever (the fixation thesis). The starting point for my analysis is the prosaic observation that our Framers occasionally changed their minds about the meaning of constitutional text. For example, Justice Kennedy in Zivotofsky cites to Alexander Hamilton’s evolved understanding that the Reception Clause is not simply a dignitary function about being a gracious social host, but that it is itself an index of an exclusive recognition power held by the executive. I thus ask: How to form an argument if a Framer changed his mind?
This Article is adjacent to trending debates about Madisonian liquidation and historical practice (i.e., “history and tradition” in cases like Bruen), but my focus on Framer influence and judicial reasoning makes it much more about authority and the rule of recognition, and when a judge like Justice Kennedy may fairly cite to this supposed kind of historical evidence at all. I thus position the historical change-of-mind as a peculiar kind of evidence separate from post-ratification liquidation or historical gloss. Factual evidence of Framer influence is layered by the binding value of constitutional authority, echoing novel “modern authority” like the Dr. Kenneth and Mamie doll experiments employed by Justice Warren in Brown v. Board of Education. Importantly, the authority of the fixation fact is based on purely empirical questions of when the Framer communicated his opinion and how widely it was disseminated. This objective inquiry brings with it unique concerns related to judicial method and argument construction.
Justice Scalia is well known for his insights regarding foreign constitutional law and legislative history, and for the categorical exceptions he made to the use of such evidence in his own concurring or dissenting opinions. However, if one takes the fixation thesis seriously, then Justice Scalia himself overlooked Justice Kennedy’s use of invalid authority when he referred to Hamilton’s post-ratification mind change regarding the Reception Clause. I explain in this Article why the lax use of fixation facts is inconsistent with our shared rules of recognition in U.S. constitutional law. I also explain why the judicial omission of evidence of original public meaning brings up similar recognitional concerns, as was done in the recent newsworthy case of Trump v. Anderson