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Terrorism Should Not Be a Crime: How Political Labels Are Dangerous to American Democracy
Get PDFThis Note calls for a dismantling of the United States’ current method of prosecuting terrorism, rejecting the “terrorism” label as a mechanism for charging crimes. Prosecutors should instead charge individuals in terrorism cases for their underlying criminal actions rather than rely on material support statutes and political innuendos to secure a conviction. By examining the implications of the terrorism label in post-9/11 America, this Note addresses how a moral panic enabled the executive branch to overstep its constitutional restraints and threatened the delicate balance of powers central to American democracy. Next, it proposes, as many have before, that Article III courts are the most adept forum to prosecute crimes relating to terrorism. However, the way they do so should be depoliticized and focus on substantive crimes, rather than offenses political in nature. Lastly, it addresses how nationwide hysteria surrounding “terrorism” gives rise to increased Islamophobia and intolerance, thus becoming a de facto campaign against Muslim Americans
Waiting for \u3cem\u3eMahanoy\u3c/em\u3e: Examining the Still-Unsettled Jurisprudence of Online Student Speech
Get PDFThis Article first explores the constitutional background of student speech rights, beginning with the Tinker decision and continuing through early court attempts to analyze online, off-campus cases. Next, it examines Mahanoy itself, unpacking the frustratingly murky majority opinion written by Justice Stephen Breyer. The Article then breaks new ground by exploring court decisions in the years since Mahanoy, as jurists continue trying to identify First Amendment boundaries in student speech cases involving bullying, threats, and otherwise offensive speech. A concluding section synthesizes the state of the law and offers perspectives on this vital area of constitutional concern.
This abstract has been taken from the author\u27s introduction
An Interview with Mark Earley
Get PDF...in America, unless each generation has a recommitment to fundamental principles of freedom and liberty, we can lose what we have in a generation. And so I decided I wanted to be a part in my generation of trying to rekindle a passion and a commitment to those first freedoms that laid the foundation for America to be a great nation. So I wanted to go to law school and change the world.
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In this oral history, dated April 5, 2024, William & Mary Law alum Mark Earley, Sr. gives us an overview of his lengthy legal and political career, including snippets of his time in the Virginia State Senate and his former position as Attorney General of Virginia. He shares stories from his childhood, undergraduate years at William & Mary, and time working at a ministry in the Philippines prior to law school. We learn about how the composition of the Virginia State Senate shifted from 1988 until he left in 2001 and what the process of appointing a judge looks like in Virginia. Mark explains why his philosophy on the death penalty and tough-on-crime initiatives shifted from full support during his years as AG to outspoken opposition today. We also hear a touching story about the lasting connection he made with a Richmond elementary schooler through a mentorship lunch program for at-risk youth.https://scholarship.law.wm.edu/oralhist_all/1012/thumbnail.jp
Agency Self-Funding in the Antinovelty Age
Get PDFThis Article demonstrates that CFSA\u27s [Community Financial Services Association of American v. CFPB] introduction of antinovelty into the self-funding space, including its particular antinovelty approach, poses an existential threat to any and all agency self-funding. On its face, this may seem like something that will only worry the more functionalist or more liberal crowd—likely because so much of the recent discussion surrounding agency self-funding has revolved around the polarizing CFPB. But even those who might want the CFPB struck down and those who subscribe to the antinovelty rationale as a general matter (between those two camps there is surely significant overlap) may not wish to call into question the constitutionality of all self-funding. The CFPB has long caught conservative ire, to be sure, but Republicans have staunchly defended the budgetary autonomy of agencies like the OCC and the FHFA. For every congressional conservative ready to hold up the CFPB’s consumer protection mission if it lost its insulation from the appropriations process, one would imagine there exists a congressional progressive willing to do the same with the missions of the OCC and FHFA. Antinovelty’s malleable methodology makes it such that no self-funded agency will be safe from the rationale’s wrath. It may start with the CFPB, but it will get to your favorite agency soon enough. This unworkability is dangerous and leads to the inescapable conclusion that the Supreme Court must expel the rationale from the agency self-funding context when it decides this case.
This abstract has been taken from the author\u27s introduction
Fights Over Continuity - In Life and Law
Get PDFWhat is the whole: a river or that river and its tributaries? There is no “natural” answer to the question, only so many answers as there are reasons for asking. Lately, the Clean Water Act has been the captive of such diversions in our Supreme Court’s agenda. Changing it will not free it from that captivity. For whatever reforms we choose could still provide boundless opportunities for frustration in questions like the above. If the Court is as eager to cause that frustration as it has appeared lately, maybe we should help the Court to its fight with this iconic statute. Continuity is everywhere in life, but it is fleeting in law. For tribunals trading on the strength and clarity of reasons that have neither strength nor clarity, it is probably even more so. In a race against time like the Chesapeake Bay’s restoration, success may turn on how fast such an agent can be expelled from the fray. And that turns on how quickly more Americans recognize judges who have ceased judging and begun, instead, to dictate
Environmental Justice, Resilience Justice, and Watershed Planning
Get PDFWatershed planning is an increasingly used governance tool for addressing environmental problems at ecosystem scales of watersheds, which are areas of land that drain to a common body of water. In recent years, watershed planning in the United States has been undergoing an “equity evolution”: watershed planners have begun integrating environmental justice considerations into their plans, often in response to demands by low-income communities of color. This Article explores a comprehensive set of principles, processes, analytical tools, and strategies for equitable watershed planning. It integrates a resilience justice perspective with environmental justice. Resilience justice is concerned with the systemically unequal vulnerabilities and adaptive capacities of marginalized and oppressed communities, who are vulnerable to disruptions and changes like natural disasters, climate change, and housing insecurity (e.g., gentrification) and have been marginalized from governance systems affecting their capacities to thrive. Watershed plans should not only address unequal environmental harms and decision-making but also empower low-income communities of color and facilitate their resilience. An equity transformation, not merely an equity evolution, is needed in watershed planning. This Article examines a case study of the University of Louisville Resilience Justice Project’s work with government agencies and communities to integrate environmental and resilience justice into planning for the Mill Creek watershed, composed of marginalized neighborhoods in Southwest Louisville, Kentucky
First Amendment Defenses to Alien Transportation Crimes
Get PDFFlorida law now prohibits the transportation of undocumented aliens into the state. Briefings characterize these laws as unconstitutionally preempting federal immigration law and federal due process rights. Despite this emphasis on due process, field, and conflict preemption unconstitutionality, few have addressed the First Amendment implications of human smuggling prosecutions of natural and some corporate persons. The Supreme Court’s Free Exercise precedent protects the religious freedoms of natural persons and some corporations. Under state alien transportation laws, these freedoms cease to exist. Because the Supreme Court has extended these religious protections to some corporations, they too are entitled to First Amendment protection from transportation crimes when religious principles motivated such crimes
Learning to Disagree Agreeably
Get PDFBut the most important lesson I learned from Judge Wilkinson—out of many important lessons—is the one brought home to me by witnessing his friendship with Judge Michael: the law works only when lawyers learn to “disagree agreeably.” This is a phrase the Judge taught me—and he always attributed to people from whom he learned it—but for me it encapsulates the Judge in every way. It is easy to talk about being collegial in the abstract, but Judge Wilkinson practices what he preaches.
In this brief Essay, on the occasion of celebrating a man who shaped my career and life in many significant ways, I will attempt to articulate (1) what the Judge actually meant by the phrase disagreeing agreeably, (2) why the concept is uniquely important to the legal profession, and (3) why it so desperately needs to be rediscovered by future generations of lawyers.
This abstract has been taken from the author\u27s introductory paragraphs
