16885 research outputs found
Sort by
Will Biden’s Executive Order to Close the Border Win or Lose Votes?
No full textWe begin with President Biden’s Executive Order today allowing temporary border closures to migrants once the seven day average of illegal entries reaches 2,500 per day. Joining us to discuss this thorny issue for the White House is Margaret Hu, a Professor of Law and the Director of the Digital Democracy Lab at William & Mary Law School
Foreword to Water Law in a Changing Climate
Get PDFClimate change impacts all aspects of water from precipitation, river flow, groundwater, and sea levels, resulting in increased droughts and extreme weather events. Once predictable and stable resources have become uncertain in a changing climate. As a result, our laws face new challenges and must answer new questions, and they need to adapt. The William & Mary Environmental Law and Policy Review symposium “Water Law in a Changing Climate” highlighted the various issues and challenges facing our legal system when it comes to water. Our symposium consisted of experienced panelists and presenters with diverse expertise who each elaborated on the various issues and challenges facing water law in a changed climate.
This abstract has been taken from the author\u27s introductory paragraph
The Constitutional Court of Kosovo in Comparative Perspective
Get PDF...presented at the Solemn Ceremony of the 14th Judicial Year of the Constitutional Court, held on 23 October 2023 in Prishtina and on the occasion of the International Conference “Contribution of Constitutional Courts in the protection and strengthening of the fundamental values of democracy, the rule of law and fundamental human rights and freedoms”, organized on 24 October 2023 in Prishtina
The Precarious Art of Classifying Facts
Get PDFIn their terrific new article, Fact Stripping, Joseph Blocher and Brandon Garrett bring formidable expertise from their respective fields to tackle the inscrutable puzzle of appellate fact review.
[...]
In this short reply I will add to Blocher and Garrett’s illuminating work by exploring a foundational confusion their article exposes. I will first explain why classifying facts as either suitable for trial or not is a very fraught endeavor; I will then argue that this difficulty allows for significant manipulation and the risk of unprincipled application. Finally, I will nod to prior work and forecast future work where I explore re-thinking the labels we currently use altogether.
This abstract has been adapted from the author\u27s introduction
Patent Your Passenger Pigeons: De-Extinction Technologies & Ramifications of the Product of Nature Doctrine
Get PDFPart I of this Note will provide a brief overview of the current methods and scientific breakthroughs that are actively being pursued by private actors (particularly the bioengineering company Colossal Biosciences) to make de-extinct creatures, establishing the crucial point that any technique used to create such an animal will inherently fall short of being able to replicate an extinct species with any one hundred percent accuracy. This section will then briefly speak as to why private actors are looking to invest in de-extinction technologies in the first place, setting out how de-extinction technologies might one day prove incredibly profitable for the investors and companies bold enough to pursue them. Part II will then address the critical issue of whether or not the product of nature doctrine in American patent law inherently limits the patentability of de-extinct animals generally, largely seconding the conclusions of seminal scholars that at least the first generation of de-extinct creatures to be born will more likely than not be determined to be patent eligible by the relevant legal bodies. However, Part III will conclude this Note by arguing that once a viable population of de-extinct animals has been established and released into the wild, any de-extinct creature produced through natural means of reproduction would be barred from patentability under the product of nature doctrine, potentially limiting private actors’ long-term capacity to economically exploit the resulting animals born of such genetic lineages.
This abstract has been taken from the author\u27s introduction
Leading the Charge: How Increased Adoption of Electric Vehicles Renews Calls for Data Privacy Protection in the United States
Get PDFThis Note will examine the privacy risks associated with constructing the nationwide [electric vehicle] EV charging network and propose solutions to mitigate this risk. Part I of this Note will discuss the Biden Administration’s climate policy and legislation and focus on the transportation sector. Part II will explain EV charging and expound on the cybersecurity and privacy concerns of the charging process. Part III will survey the current regulatory landscape at the federal level and highlight California’s approach to data privacy. Finally, Part IV examines recently proposed federal and model state legislation in light of the Fair Information Practice Principles (FIPPs) to argue that this legislation would provide meaningful protections to EV owners.
This abstract has been taken from the author\u27s introduction
A Rule Without a Reason: Determining the Capacity for Negligence of a Person with Mental Illness
Get PDFSince the pandemic, the impacts of structural bias on racial minorities and other groups have become an even more compelling concern for legal commentators. One group that has received some attention in the effort to confront bias is the mentally ill. This attention has coincided with a rise in the willingness of individuals to talk about, and destigmatize, mental health issues in society. Yet, despite these efforts, along with a long and well-established body of scholarship that criticizes its treatment of mental illness, the civil law—particularly the law of tort—continues its entrenched refusal to consider mental illness when determining the liability of individuals for harms they have caused. The law has lurched from one policy rationale to another in its efforts to avoid considering the impact of mental illness on liability. As evidenced by the Restatement (Third) of Torts, the only consistent basis for liability seems to be concerns over the law’s administrability, with commentators continuing to suggest that the courts cannot adequately identify if and when a mental illness has impacted an individual’s capacity to understand and act in accordance with the law.
Although many commentators have suggested that mental health professionals can adequately deal with concerns over administrability, none of them have explained how mental health practitioners actually do so. In this Article, we fill this gap. We first provide a sense of the legal landscape—describing the law of negligence’s treatment of mental illness and the rather uncertain and constantly changing policy basis underlying it—before turning to the Restatement (Third) of Torts’ almost complete reliance on administrability concerns as the basis for refusing to consider mental illness in addressing issues of liability. We then turn to a discussion of how these administrability concerns are unfounded by describing the process used by mental health professionals to analyze capacity in legal decision-making. Our goal is not only to make clear that the stated policy basis for liability is unsound, but also to provide lawyers, judges, and those concerned with the administration of justice with an understanding of the depth and reliability of the process that is used to analyze capacity when mental illness is at issue in a particular negligence case. When the process is delineated in its completeness and its safeguards brought to light, its rigor can hopefully decrease the influence of biases and misjudgments whose influence persists
The Brady Database
Get PDFThe Supreme Court’s landmark ruling in Brady v. Maryland turns sixty this year. The Brady doctrine, which requires the government to disclose favorable and material evidence to the defendant, is one of the most frequently litigated criminal procedure issues. Yet, despite decades of Brady cases in federal and state courts, we still know relatively little about how Brady claims are litigated, adjudicated, and what such claims can tell us about the criminal justice system writ large. Scholars are in the dark about how often Brady violations occur, whether it is primarily the fault of prosecutors or the police, whether violations are intentional or accidental, and a host of related questions.
This Article fills a gap in the data and literature by analyzing five years of Brady claims—over 800 cases—raised in state and federal courts. We coded each case for more than forty variables to answer big-picture questions like how often Brady claims are successful and which courts are most likely to grant relief. We also studied more intricate questions such as the types of crimes and evidence at issue, whether judges deemed violations intentional or accidental, and whether judges chastised or disciplined prosecutors for failing to disclose evidence.
Our study revealed some important and surprising findings. Despite suggestions in some quarters that prosecutorial misconduct is not a major problem, courts found Brady violations in 10% of the cases in our study. Prosecutors, not police, were responsible for most violations and they were almost never referred to the Bar for discipline. While federal prosecutors are supposed to be elite highly trained lawyers, they were responsible for a disproportionate share of Brady violations. And while the federal courts are lauded as the protector of civil liberties, it was state courts that granted relief more frequently, often on direct review rather than in habeas corpus proceedings as scholars would have expected.
These findings and many others—such as petitioners having to wait on average ten years for relief for Brady violations—demonstrate that we continue to have egregious prosecutorial misconduct problems in the United States and that further study is needed. To that end, this project not only reports significant data, but also is the first step in the creation of a searchable database that we are creating to empower other researchers to further analyze how Brady claims are being litigated and adjudicated
Public Protest and Government Immunities
Get PDFThis Article presents the findings of a quantitative and qualitative study of the application of qualified immunity and other governmental immunities in the context of public protest. Relying on three unique datasets of federal court decisions examining First Amendment and Fourth Amendment claims, the Article concludes that public protester plaintiffs face an array of obstacles when suing state, local, and federal officials for constitutional injuries. Quantitative findings show that protesters’ claims are frequently dismissed under qualified immunity doctrines and that plaintiffs also face strict limits on municipal liability, new restrictions on First Amendment retaliation claims, and the possible extinction of monetary actions against federal officials. Qualitatively, the study shows protesters’ rights are underdeveloped in several respects, including recognition of the right to record law enforcement and limits on law enforcement’s use of force. The study lends additional support and new urgency to calls for qualified immunity reform or repeal, as well as reconsideration of other governmental immunities. It also concludes that much more than money damages for injured plaintiffs is at stake. Lack of adequate civil remedies may significantly chill future public protest organizing and participation
Murder on the Hearsay Trail
Get PDFJudges, lawyers, and law students struggle to apply American evidence law’s most distinctive feature—the hearsay prohibition. The problem is that hearsay is difficult to master and somewhat dull. At the same time, hearsay evidence is ubiquitous and important. Every litigator has a story about a judge’s eccentric hearsay rulings; mine is the trial judge who waved his hand dismissively at hearsay objections, letting witnesses answer on the grounds that “I want to hear it.” And the case law is littered with appellate opinions scolding trial judges for erroneous hearsay rulings while introducing errors of their own.
That is just the visible aspect of the problem. Lawyers are no better at hearsay than judges. Yet for every trial, there are countless non-trial resolutions where no evidence is presented, much less ruled upon. When hearsay is involved, parties evaluate the wisdom of these dispositions (dismissals, settlements, and guilty pleas) with only a rough understanding of the evidence that would be admissible at trial.
This Article attempts to remedy this unsettling state of affairs. First, to get around the dullness problem, it weaves hearsay analysis into a mystery in the spirit of a John Grisham novel. The fictional tale of intrigue and murder twists and turns while dropping clues that ultimately solve the case. Then, the Article tackles hearsay’s complexity by solving the evidentiary puzzles inherent in those clues, which represent key inflection points in the doctrine. By explaining which clues can be presented to the jury, and how those answers evolved over time, the Article paints the modern American hearsay landscape and rehabilitates its (unfairly) reviled rules. Finally, the Article explains why—if we are going to have a hearsay prohibition—this is as good as it gets. Contrary to the complaints of numerous critics, the current hearsay definition is the simplest of the alternatives and offers the best results