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2024: Patricia A. Millett and Jeffrey Sutton
No full textJudge Millett and Judge Sutton with Dean Spencer.
Photos by David F. Morrillhttps://scholarship.law.wm.edu/mwmedallion/1055/thumbnail.jp
Adapting Seasonal Water Rights
Get PDFClimate change is shifting seasons. Spring comes earlier, fall comes later, rainy seasons are shorter and more intense, and summers are hotter and longer. In the American West, winter precipitation increasingly falls as rain, leading to a smaller snowpack and an earlier, more intense runoff followed by a longer and drier dry season. For irrigators— the highest volume water users—growing seasons are shifting earlier, weather is less predictable, and precipitation is increasingly inconsistent. The end of a relatively static climate marks the end of static water rights. The shifting seasons pose serious challenges to our ability to manage water systems.
The legal infrastructure of water management is ill-suited for a changed climate. Western water right systems were built on an assumption of climate stationarity that is no longer true. Everything from basin adjudications based on outdated annual flows to the design of western water rights themselves may have to change to accommodate our shifting climate.
In this Article, we examine the seasonality of water rights. Water rights allow diversion during a particular time of year, often the historic growing season or peak runoff season. These restrictions are an inherent part of the water right, as important as the total volume or rate of water withdrawal. As the shifting climate alters runoff patterns, many water rights will be left high and dry with insufficient water available during the allowed season of diversion.
Although state water agencies have begun to think about new conditions on future water rights, the real problem is addressing existing water rights to accommodate the shifting seasons. Here, we examine a selection of sixty-one water rights in the Sacramento River watershed, California’s largest river system. These water rights show weaknesses in California’s current approach to managing water rights for a changing climate. Based on this examination, we consider options for western states to improve their water right resilience in the face of our new climate reality
Convening for (Climate) Change: The Constitutional Case for a U.S. Climate Assembly
Get PDFThis Note argues that a national U.S. Citizens’ Assembly for Climate would not violate the non-delegation doctrine which prevents Congress from improperly delegating its constitutional legislative power to another body. A climate assembly could potentially be authorized in several ways; this Note explores that of Congress convening a climate assembly through statute, either as an independent body or as a body under the authority of the Environmental Protection Agency. Part I examines the current state of American climate policy and the political debate surrounding it, putting forward a case for a novel approach, and also examines the concept of climate assemblies, detailing their composition and function, and briefly reviews the experience of citizens’ assemblies (those focused on climate policy and other policies) in other countries as well as the experience of the Washington State climate assembly. Part II examines Congress’s power to authorize and delegate power to a U.S. Climate Assembly. This Part also explores the feasibility of Congress’s establishing a U.S. Climate Assembly under the Environmental Protection Agency. Part III proposes how Congress could design a U.S. Climate Assembly and analyzes potential challenges in its structure and function. The Conclusion summarizes these sections and offers further remarks on the feasibility and utility of citizens’ assemblies in an American political context.
This abstract has been taken from the author\u27s introduction
Law Office History and the Unrelenting Attack on Public Accommodations Law
Get PDFIn recent years, the cause of commercial liberty has found new life in litigation challenging public accommodations laws that prohibit discrimination by businesses on the basis of sexual orientation. Considerable scholarly attention has been paid to the use of the First Amendment as a liability shield in these cases, which have primarily been litigated on the terrain of free speech and religious liberty. But in amicus briefs filed in both cases that have reached the Supreme Court—303 Creative LLC v. Elenis and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission—scholars who are skeptical of commercial regulation have also offered the more sweeping argument that the Court should “tie the legitimate goals of public-accommodation law directly to local scarcity.” On this view, only businesses with monopoly power can be subject to nondiscrimination rules, while non-monopoly businesses enjoy a constitutional right to refuse service as part of the “entrepreneurial liberty” guaranteed by the Fourteenth Amendment.
This abstract has been taken from the author\u27s introduction
An Interview with James Heller
Get PDFWhen you come to a fork in the road, take it. -- Jim Heller (and Yogi Berra)
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In this oral history, dated April 3, 2024, James “Jim” Heller gives us an overview of his long career in law librarianship, 31 years of which he spent as Director of the Wolf Law Library at William & Mary Law School. He shares insight into a number of defining moments throughout the law library’s history, including the development of the Digital History Display, the creation of the George Wythe Collection and Wythepedia, and the total renovation of the library in 2007. We learn about the lasting Jim-inspired hiring process at the law library, the history of his band, “Winslow Ridge,” and the amusing origin story of a life-size doll named Prudence who once roamed free across the library. Jim also shares touching memories about his friend and former colleague, the late Betta Marie Labanish, who devoted nearly 35 years of her life to William & Mary Law School.https://scholarship.law.wm.edu/oralhist_all/1015/thumbnail.jp
Legal Support for Local Election Officials
Get PDFLocal election officials (“LEOs”) face enormous pressure. They must administer elections when a wide swath of the American public has grown mistrustful of their work; they increasingly face ominous personal attacks and threats; they cope with chronic underfunding of elections; and they must navigate frequent changes in the law governing elections. Lawyers provide a critical avenue of support for local election officials. They provide guidance on how to implement legislative mandates and judicial orders; they anticipate and prevent disputes from arising; and they represent election officials when they or their offices are sued—a more common occurrence today than ever. Although lawyers are crucial to ensuring election officials (and thus elections) can function, legal support for election officials is seldom discussed. Do election officials have adequate access to competent legal counsel? Are lawyers guiding and representing local election officials knowledgeable about how elections work and the laws that govern them? How does the increasingly tricky political terrain complicate LEO access to legal support? This Essay aims to start this conversation and spur study of how lawyers support local election officials in their work. The premise of this Essay is that competent LEO legal support is critical to ensuring reliable, free, and fair elections
Breaking the Chains: Lessons Learned from Anti-Slave Labor Laws and Their Applicability to Proposed Expansions to the UFLPA
Get PDFWith global trade growing every day and more products being imported from foreign countries, responsible sourcing of products is more important now than ever. Irresponsible importation of goods can lead to countries like the United States supporting human rights abuses abroad by allowing goods made with forced labor into their domestic markets. The Uyghur Forced Labor Protection Act (UFLPA) has empowered the United States’ Customs and Border Protection to hinder the flow of goods made with Uyghur forced labor into the United States, but it has not been completely successful in preventing these goods from being sold in the United States. Congress considered expansions to the UFLPA to further deter the use of slave labor that adopts measures from previous attempts to reduce the use of forced labor. The prior use of these measures provides an opportunity to see how effective they might be in China and explore how the UFLPA can be expanded to other territories. If the United States expands the UFLPA, it could provide a framework to address the import of slave labor goods across the globe by demonstrating an effective means of prevention. However, the United States will have to tailor any such measures to the situation it is meant to address
Freedom and Families: Reconstruction Republicans and the Question of Women\u27s Reproductive Autonomy
Get PDFThis Essay proceeds in three Parts. In the first, I illuminate how congressional Republicans discussed women, gender, and families in the context of policymaking associated with abolishing slavery. Many Republicans worried that enslaved people’s family relationships had been damaged by the imposition of slavery and sought to impose on freedpeople what they saw as normative family values, including by encouraging heterosexual marriage and by insisting on patriarchal gender roles within families. Second, I show that Republicans were at pains to demonstrate that when they talked about equality, they meant race but not gender. Finally, I reflect on the limits of relying on elite discourse for understanding the past and discuss synergies between the work of some constitutional law scholars and that of historians working to deepen our collective understanding of the history of women, gender, and families in the nineteenth-century United States.
This abstract has been taken from the author\u27s introduction