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Supreme Court Litigators in the Age of Textualism
Get PDFThe Supreme Court’s approach to statutory interpretation has moved in a textualist direction over the last several decades, but there is little systematic information on how litigators’ briefing practices have changed during this era of textualist ascendancy. This Article examines thirty-five years’ worth of party briefs (over 8,000 briefs total), explores the briefs’ use of interpretive tools (including differences across categories of attorneys), and compares the briefs to the Court’s opinions.
This examination yields several valuable findings. Although the briefs show a textualist shift, they differ from the Court’s opinions in a few ways. The magnitude of the textualist shift is smaller in the briefs than in the opinions, as legislative history remains an important force in briefs (especially those of the Solicitor General) despite decades of criticism from judicial textualists and steep declines in the Court’s use of that tool. The briefs instead reflect the rise of textualism through the supplementation of legislative history with characteristically textualist tools and a shift in which tools the briefs emphasize. Disaggregating different types of litigators shows that, although there is some evidence that elite litigators responded more quickly to changes in the Court’s practices, elites and nonelites have today come to resemble each other in their interpretive styles.
The findings contribute to our understanding of the Court’s informational environment and reveal a divergence between the Court’s pro-textualist rhetoric and the more pluralistic practices of litigators. This divergence may serve the Court’s informational needs better than a world in which the practicing bar emulated the Court’s text- and dictionary-dominated opinions
The Uncertain Future of Tourism on Migrating Barrier Islands: How and Why the Outer Banks of North Carolina Should Adjust to Growing Threats
Get PDFErosion, storms, and the migration of the barrier islands that comprise the Outer Banks themselves are not new. The rising seas that have resulted from climate change have merely exacerbated what has always occurred. What is new, however, is the economic havoc that natural processes and disasters alike can wreak on the islands. Today, because climate change has accelerated natural island migration, individuals, local governments, and the federal government alike have a lot to lose in the fight against the tides.
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This Note will evaluate a variety of potential solutions to the problems that pose nearly existential threats to development on the Outer Banks of North Carolina, with a specific focus on Dare County. Dare County is an important case study in the management of migrating barrier islands on the Outer Banks and elsewhere across the region because it is a site of many competing interests. Dare contains popular and relatively new tourist towns, neighborhoods for permanent residents, unique parklands, and historical landmarks alike. Part I will discuss the history of the islands— both in the long term as migrating barrier islands, and in the nearer term, tracing patterns of development. Part II will discuss current laws and policies, from national programs to county ordinances and their current flaws. Part II will also examine the costs of these policies amid the threats of erosion and climate change. Topics of discussion will include the National Flood Insurance Program (NFIP) as authorized by the Federal Emergency Management Agency (FEMA), North Carolina’s Coastal Area Management Act (CAMA), and a selection of noteworthy Dare County Ordinances. There are six municipalities with their own municipal codes within Dare County. This Note, however, largely will not discuss those municipal regulations because the areas that face the most imminent threats remain unincorporated. Part III will discuss a variety of potential solutions, and how no one solution could adequately address the multi-faceted problems that Dare County faces. Proposed solutions range from the enactment of rolling easements, to changes to local land use and development regulations, and to the institution of a mechanism that would force lenders to bear the brunt of the costs of flood insurance. Part IV will address counterarguments to the notion that sweeping changes are needed in Dare County.
This abstract has been taken from the author\u27s introduction
When All Else Fails: The Doctrine of Foreign Equivalents as a Bar to Cultural Misappropriation
Get PDFThis Note argues that under trademark law, the doctrine of foreign equivalents can be utilized to prevent some aspects of legally enforced cultural misappropriation. While it would be impossible to solve cultural misappropriation in one written piece, this Note proposes that the doctrine can serve to prevent applicants from obtaining trademark protections for certain foreign words.
Part I of this Note provides background on cultural misappropriation and the doctrine of foreign equivalents. Part II argues why the doctrine of foreign equivalents is poised to solve some of the harms of cultural misappropriation both in its structure and purpose. Part III proposes changes to the application of the doctrine that will aid not only in its consistency but also in its prevention of cultural misappropriation. Finally, Part IV discusses potential challenges and limitations to this proposed structure.
This abstract was taken from the author\u27s introduction
Symposium Introduction: The Volume Problem
Get PDFIntroduction to the 2024 William & Mary Law Review symposium, Understanding and Responding to Mass Incarceration
Decommodifying Cultural Heritage: A Linguistic Unpacking of Cultural Property
Get PDFThe complex history of cultural property regulation in the United States, discussed below, suggests a lack of consensus regarding the definition of the legislation’s target. However, as this Note argues, it is futile to attempt crafting a precise definition of the objects qualifying for protection under such legislation without first addressing the dueling interests inherent in the operative words. An examination of the various aims of cultural property legislation reveals two competing goals. On one side exists the desire to protect cultural heritage for the world’s enrichment, and on the other is the desire to protect private ownership rights. These interests are embodied in the inherent tension between, and within, the words corresponding to these respective goals—“heritage” and “property”—and their interactions with what are arguably more straightforward supporting words, such as “objects” and “antiquities.” This Note argues that colloquial word associations with “property” contribute to the difficulties legislators and courts face in regulating and prosecuting cultural property trafficking. Due to these connotations, the international conventions using these terms have laid an insufficient foundation for American federal legislation aiming to regulate cultural property because the use of the word “property” characterizes cultural heritage as a commodity, rather than as something of value for entire communities.
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This Note proceeds in four Parts. Part I provides an overview of relevant cultural property legislation spanning from the Hague Conventions of 1899 and 1907 to the Convention on Cultural Property Implementation Act of 1983. Part II explores the impact of connotations associated with the word “property” by analyzing observable usage as it exists in academic literature and case law. To add quantitative strength to the anecdotal observations, Part III introduces a corpus linguistics study which analyzes corpora, bodies of text consisting of a large number of sources, for common words and patterns. Part IV contextualizes the results of this corpus linguistics study within the relevant case law, showing how the phrase “cultural property” is unavailing in such disputes, and proposes new terminology as a solution.
This abstract has been taken from the author\u27s introduction
Afraid for the Dark: Regulating Light Pollution Under the Clean Water Act
Get PDFCurrently, light pollution is only regulated at the state and local level. However, not all states implement legislation to mitigate the adverse effects of ALAN [Artificial light at night]. Nineteen states, the District of Columbia, and Puerto Rico have implemented laws to reduce light pollution. In states without such laws, or in federal waters, light-intensive activities remain unchecked. The rapid increase in light pollution in recent years illustrates the inadequacies of existing state and local regulatory schemes and calls for a new understanding of ALAN as a pollutant to marine ecosystems.
This Note argues that the existing tools in the Clean Water Act (CWA, or “the Act”) provide authority for the U.S. Environmental Protection Agency (EPA) to regulate light pollution and preserve the integrity of the nation’s waters. Part I examines the existing body of research on ALAN’s damage to marine and wetland ecosystems. Part II surveys the insufficiency of existing state and local regulation of light pollution. Part III addresses the need for federal regulation of light pollution through ALAN’s classification as a pollutant under the CWA. Part III also confronts counterarguments to recent concerns about regulatory overreach in the wake of West Virginia v. EPA.
This abstract was taken from the author\u27s introduction
Race to the Bottom: How Equitable Apportionment Could Encourage Overdrafting of Aquifers
Get PDFGroundwater is a vital source of water for drinking and irrigation in the United States. However, it was unclear what legal doctrine would apply to apporting interstate groundwater between the states. This changed in Mississippi v. Tennessee, when the Supreme Court ruled that equitable apportionment would the controlling doctrine. The Court though declined to clarify how the doctrine would be applied to groundwater. This Note discusses how equitable apportionment has historically been applied to rivers and hypothesizes how the Court may apply equitable apportionment to groundwater
