Law Commons^™

Twenty-First Century Labor Law: Striking The Right Balance Between Workplace Civility Rules That Accommodate Equal Employment Opportunity Obligations And The Loss Of Protection For Concerted Activities Under The National Labor Relations Act, Christine Neylon O'Brien

William & Mary Business Law Review

Employees who engage in protected concerted activities relating to work generally are shielded from discipline by Section 7 of the National Labor Relations Act (NLRA). Where otherwise protected work-related activity involves profanity or offensive speech or actions, whether in or out of the workplace, on a picket line, or on social media, such may violate employer civility rules and/or equal employment opportunity laws. Important interests are at stake, including for employers to maintain a safe, discrimination-free workplace; and for employees to exercise their right to communicate about workplace matters. This Article analyzes recent cases on the question when offensive employee …

Duties, Disclosure, And Discord: Necessity To Resolve Circuit Split And Certainty Leidos Could Have Clarified For Litigation Strategy And Risk Allocation, Damian P. Gallagher

William & Mary Business Law Review

Securities litigation is a complex, specialized, and detailed practice of the law that depends on the expertise of courts and the Securities and Exchange Commission. From its inception, the securities laws, namely the Securities Act of 1933 and the Securities Exchange Act of 1934, provided a baseline expectation and prescription for the Securities and Exchange Commission to promulgate rules to fulfill the organic statute’s demands. Through time, technology, and the law generally, the securities laws have expanded significantly, not only asking, but also requiring, the courts to answer questions never contemplated by the original drafters of the laws to guide …

"Liberty Requires Accountability": The Appointments Clause, Lucia V. Sec, And The Next Constitutional Controversy, Michael A. Sabino

William & Mary Business Law Review

“Liberty requires accountability” is the essential precept which animates the Appointments Clause of Article II. This constitutional safeguard assures that those who exercise the sovereign power of the United States remain accountable both to the Chief Executive who appointed them and to the People who elected that President. The proviso was most recently tested in Lucia v. SEC, and, most assuredly, shall be in controversy again. After first expositing the high Court’s extensive Appointments Clause jurisprudence presaging Lucia, this Article thoroughly explores this newest Article II landmark, before concluding with commentary upon future Appointments Clause challenges expected to soon …

Time To Prune The Flora--Procedural Due Process, The Full Payment Rule And Assessable Penalties: Larson V. United States, Frank G. Colella

William & Mary Business Law Review

In Larson v. United States, the Second Circuit Court of Appeals rejected the opportunity to limit the scope of the Flora “full payment” rule when its strict application in the instant case foreclosed judicial review of the underlying tax controversy. As a result, the decision rubberstamped the IRS’s imposition of assessable penalties without any meaningful judicial review of those actions. The Article argues that the court’s decision to blindly apply the full payment rule, without considering any form of a hardship exception, effectively denied John Larson his right to due process of law as guaranteed by the Fifth Amendment …

Codification Of The Economic Substance Doctrine: Agency Response And Certain Other Unforeseen Consequences, Rebecca Rosenberg

William & Mary Business Law Review

Section 7701(o) of the Internal Revenue Code incorporates the controversial judicial doctrine of economic substance into statutory language. In other words, it “codifies” the doctrine. (The economic substance doctrine generally provides that a tax benefit that goes beyond Congressional intent can be disallowed by the courts, even if the taxpayer meets all of the literal Code and regulatory requirements for claiming the benefit.)

This codification appears to have accidentally dissuaded the relevant agency (the Internal evenue Service, or IRS) from raising economic substance issues—an effect that is contrary to Congress’s intent in enacting the doctrine into legislation. Essentially, Congress imported …

How Much Is “Substantial Evidence” And How Big Is A “Significant Gap”?: The Telecommunications Attorney Full Employment Act, Susan Lorde Martin

William & Mary Business Law Review

The late U.S. Supreme Court Justice Antonin Scalia described the Telecommunications Act of 1996 as “a model of ambiguity or indeed even self-contradiction.” Legal wags have also described the Act as the Telecommunications Attorney Full Employment Act. Twenty years after the Act became law, it is still being interpreted by courts all over the country and costing taxpayers millions of dollars as local governments defend their telecom decisions in lawsuits. The Act’s basic notion was to allow local zoning authorities to maintain their control over their territories with a few new limitations that would encourage cell phone service companies to …