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College of William & Mary Law School

Journal

2018

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Articles 1 - 30 of 141

Full-Text Articles in Law

The Father Of Modern Constitutional Liberalism, John Lawrence Hill Dec 2018

The Father Of Modern Constitutional Liberalism, John Lawrence Hill

William & Mary Bill of Rights Journal

No abstract provided.


The Esquire Case: A Lost Free Speech Landmark, Samantha Barbas Dec 2018

The Esquire Case: A Lost Free Speech Landmark, Samantha Barbas

William & Mary Bill of Rights Journal

No abstract provided.


Civil Rights Notes: American Indians And Banishment, Jury Trials, And The Doctrine Of Lenity, Grant Christensen Dec 2018

Civil Rights Notes: American Indians And Banishment, Jury Trials, And The Doctrine Of Lenity, Grant Christensen

William & Mary Bill of Rights Journal

No abstract provided.


Other Lands And Other Skies: Birthright Citizenship And Self-Government In Unincorporated Territories, John Vlahoplus Dec 2018

Other Lands And Other Skies: Birthright Citizenship And Self-Government In Unincorporated Territories, John Vlahoplus

William & Mary Bill of Rights Journal

No abstract provided.


A Reparative Justice Approach To Assessing Ancestral Classifications Aimed At Colonization’S Harms, Susan K. Serrano Dec 2018

A Reparative Justice Approach To Assessing Ancestral Classifications Aimed At Colonization’S Harms, Susan K. Serrano

William & Mary Bill of Rights Journal

No abstract provided.


The Superior Solution To The “Denominator Problem” — Comparing The Majority And Dissent’S Property Benchmark Tests In Murr V. Wisconsin With A Focus On Property Owners’ Reasonable Expectations, Rosemary K. Mcguirk Dec 2018

The Superior Solution To The “Denominator Problem” — Comparing The Majority And Dissent’S Property Benchmark Tests In Murr V. Wisconsin With A Focus On Property Owners’ Reasonable Expectations, Rosemary K. Mcguirk

William & Mary Bill of Rights Journal

No abstract provided.


Who’S Your Sovereign?: The Standing Doctrine Of Parens Patriae & State Lawsuits Defending Sanctuary Policies, Lexi Zerrillo Dec 2018

Who’S Your Sovereign?: The Standing Doctrine Of Parens Patriae & State Lawsuits Defending Sanctuary Policies, Lexi Zerrillo

William & Mary Bill of Rights Journal

No abstract provided.


How Google Perceives Customer Privacy, Cyber, E-Commerce, Political And Regulatory Compliance Risks, Lawrence J. Trautman Nov 2018

How Google Perceives Customer Privacy, Cyber, E-Commerce, Political And Regulatory Compliance Risks, Lawrence J. Trautman

William & Mary Business Law Review

By now, almost every business has an Internet presence. What are the major risks perceived by those engaged in the universe of Internet businesses? What potential risks, if they become reality, may cause substantial increases in operating costs or threaten the very survival of the enterprise?

This Article discusses the relevant annual report disclosures from Alphabet, Inc. (parent of Google), along with other Google documents, as a potentially powerful teaching device. Most of the descriptive language to follow is excerpted directly from Alphabet’s (Google) regulatory filings. My additions about these entities include weaving their disclosure materials into a logical ...


Digital Gold: Cybersecurity Regulations And Establishing The Free Trade Of Big Data, Victoria Conrad Nov 2018

Digital Gold: Cybersecurity Regulations And Establishing The Free Trade Of Big Data, Victoria Conrad

William & Mary Business Law Review

Data is everywhere. With more than ten billion Internetenabled devices worldwide, each day individuals create a flood of information that is transferred onto the Internet as big data. Businesses that have the resources to capture and utilize data can better understand their consumers, allowing for reinforcement of customer relationship management, improvements to the management of operational risk, and enhancement of overall firm performance. However, big data’s advantages come with high costs. The cost of organization and storage coupled with the fact that no legal principle allows for any sort of property rights in big data creates a “digital divide ...


Salary History Should Be Her Story: Upholding Regulations Of Salary History Through A Commercial Speech Analysis, Elizabeth Lester-Abdalla Nov 2018

Salary History Should Be Her Story: Upholding Regulations Of Salary History Through A Commercial Speech Analysis, Elizabeth Lester-Abdalla

William & Mary Law Review

No abstract provided.


Absolute Priority Redux: First-Day Orders And Pre-Plan Settlements In Chapter 11 Post-Jevic, Bruce Grohsgal Nov 2018

Absolute Priority Redux: First-Day Orders And Pre-Plan Settlements In Chapter 11 Post-Jevic, Bruce Grohsgal

William & Mary Business Law Review

This Article considers the problem of priority-skipping distributions made by a chapter 11 debtor outside of a plan, following the Supreme Court’s Jevic decision. The Jevic Court extended the absolute priority rule—which under U.S. bankruptcy enactments dictates the order of distributions to creditors under a chapter 11 cramdown plan and in a chapter 7 liquidation—to a chapter 11 case-ending settlement known as a “structured dismissal.”

The Jevic Court limited its holding to a case-ending settlement. It did not extend the absolute priority rule to an interim or pre-plan settlement or other transaction that is not case-ending ...


Codification Of The Economic Substance Doctrine: Agency Response And Certain Other Unforeseen Consequences, Rebecca Rosenberg Nov 2018

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 ...


Music Streaming: Where Interactive & Non-Interactive Services Fit Under The Homestyle Exemption, Taylor Mcgraw Nov 2018

Music Streaming: Where Interactive & Non-Interactive Services Fit Under The Homestyle Exemption, Taylor Mcgraw

William & Mary Business Law Review

When business owners play music in their establishments, they have either appropriately purchased a public performance license or they are playing the musical composition without permission from the rights holder, ultimately violating the Copyright Act. Business owners commonly use what is known as the Homestyle Exemption, giving them the ability to forego purchasing a license, assuming they can meet the exemption’s requirements. Before the era of music streaming, terrestrial radio was the popular way to consume music, which is reflected in the Homestyle Exemption’s requirement that the music be radio broadcast. Today’s business owners are taking advantage ...


Boost: Improving Mindfulness, Thinking, And Diversity, Peter H. Huang Nov 2018

Boost: Improving Mindfulness, Thinking, And Diversity, Peter H. Huang

William & Mary Business Law Review

Many important decisions can be difficult; require focused, cognitive attention; produce delayed, noisy feedback; benefit from careful and clear thinking; and quite often trigger anxiety, stress, and other strong, negative emotions. Much empirical, experimental, and field research finds that we often make decisions leading to outcomes we judge as suboptimal. These studies have contributed to the popularity of the idea of nudging people to achieve better outcomes by changing how choices and information are framed and presented (also known as choice architecture and information architecture). Although choice architecture and information architecture can nudge people into better outcomes, choice architecture and ...


A Voice In The Wilderness: John Paul Stevens, Election Law, And A Theory Of Impartial Governance, Cody S. Barnett, Joshua A. Douglas Nov 2018

A Voice In The Wilderness: John Paul Stevens, Election Law, And A Theory Of Impartial Governance, Cody S. Barnett, Joshua A. Douglas

William & Mary Law Review

Justice John Paul Stevens retired from the Supreme Court almost a decade ago and turned ninety-eight years old in April 2018. How should we remember his legacy on the Supreme Court? This Article places his legacy within his election law jurisprudence. Specifically, Justice Stevens provided a consistent theory, which we term “impartial governance,” that has had a lasting impact on the field. This theory undergirds Justice Stevens’s creation of the important Anderson-Burdick-Crawford balancing test that federal courts use to construe the constitutionality of laws that impact the right to vote, such as voter ID laws. It is part of ...


Democratizing Interpretation, Anya Bernstein Nov 2018

Democratizing Interpretation, Anya Bernstein

William & Mary Law Review

Judges interpreting statutes sometimes seem eager to outsource the work. They quote ordinary speakers to define a statutory term, point to how an audience understands it, or pin it down with interpretive canons. But sometimes conduct that appears to diminish someone’s power instead sneakily enhances it. So it is with these forms of interpretive outsourcing. Each seems to constrain judges’ authority by handing the reins to someone else, giving interpretation a democratized veneer. But in fact, each funnels power right back to the judge.

These outsourcing approaches show a disconnect between the questions judges pose and the methods they ...


The Theory And Practice Of Contestatory Federalism, James A. Gardner Nov 2018

The Theory And Practice Of Contestatory Federalism, James A. Gardner

William & Mary Law Review

Madisonian theory holds that a federal division of power is necessary to the protection of liberty, but that federalism is a naturally unstable form of government organization that is in constant danger of collapsing into either unitarism or fragmentation. Despite its inherent instability, this condition may be permanently maintained, according to Madison, through a constitutional design that keeps the system in equipoise by institutionalizing a form of perpetual contestation between national and subnational governments. The theory, however, does not specify how that contestation actually occurs, and by what means.

This paper investigates Madison’s hypothesis by documenting the methods actually ...


The Fatal Failure Of The Regulatory State, W. Kip Viscusi Nov 2018

The Fatal Failure Of The Regulatory State, W. Kip Viscusi

William & Mary Law Review

Although regulatory agencies place high values on the benefits associated with the reduction in mortality risks due to regulations, these same agencies substantially undervalue lives in their enforcement efforts. The disparity between the valuation of prospective risks and fatalities that have occurred is often by several orders of magnitude, diminishing whatever safety incentives the regulations might have generated. A review of the practices by the major federal agencies with responsibility for product safety and occupational safety finds that the value placed on fatalities in agencies’ regulatory analyses can be a factor of 1000 times greater than the magnitude of the ...


Anticompetitive Manipulation Of Rems: A New Exception To Antitrust Refusal-To-Deal Doctrine, Tyler A. Garrett Nov 2018

Anticompetitive Manipulation Of Rems: A New Exception To Antitrust Refusal-To-Deal Doctrine, Tyler A. Garrett

William & Mary Law Review

No abstract provided.


Environmental Governance And The Global South, Jeffrey J. Minneti Oct 2018

Environmental Governance And The Global South, Jeffrey J. Minneti

William & Mary Environmental Law and Policy Review

Over the last several decades, efforts to regulate the environment through traditional public law at national and international levels have stalled. In contrast, private environmental governance has flourished as nongovernmental entities have engaged in standard setting and assessment practices traditionally left to public government. This Article observes that while private governance of producers’ environmental product claims has grown tremendously in recent years, the vast majority of the governance originates in the global North and thrusts the global North’s economic and environmental agenda into the global South. In light of recent empirical studies of the effectiveness of such governance, the ...


When The Well Runs Dry: Why Water-Rich States Need To Prepare For Climate Change And Protect Their Groundwater, Danielle Takacs Oct 2018

When The Well Runs Dry: Why Water-Rich States Need To Prepare For Climate Change And Protect Their Groundwater, Danielle Takacs

William & Mary Environmental Law and Policy Review

It may seem surprising to see such concern over groundwater usage in a state like Wisconsin. While known for its dairy and cheese production, Wisconsin is first in the nation for producing snap beans and cranberries. Agriculture contributes $88.3 billion annually to Wisconsin’s economy alone. In addition to bordering two of the Great Lakes, Lake Michigan and Lake Superior, Wisconsin boasts that it is home to about 15,000 lakes. And this does not include the numerous rivers and streams throughout the state. These facts alone may make Wisconsin seem an unlikely place for disputes over groundwater, as ...


Contemporary Sunday Hunting Laws: Unnecessary Economic Roadblocks, Ripe For Repeal, Seamus Ovitt Oct 2018

Contemporary Sunday Hunting Laws: Unnecessary Economic Roadblocks, Ripe For Repeal, Seamus Ovitt

William & Mary Environmental Law and Policy Review

In America, Sunday closing laws, laws restricting what activities individuals could engage in, date back to the early colonial period; those early laws, like much of North American jurisprudence, trace their roots to the laws that existed in England at the time. Historically, however, laws restricting the behavior of individuals, specifically on Sundays, date back thousands of years; initially, their language was tied directly to that of the Old Testament. As God declared:

[s]ix days shalt thou labour, and do all thy work: But the seventh day [is] the Sabbath of the Lord thy God: [in it] thou shalt ...


Using Renewable Portfolio Standards To Accelerate Development Of Negative Emissions Technologies, Anthony E. Chavez Oct 2018

Using Renewable Portfolio Standards To Accelerate Development Of Negative Emissions Technologies, Anthony E. Chavez

William & Mary Environmental Law and Policy Review

As society continues to emit greenhouse gases, the likelihood of dangerous climate change occurring increases. Indeed, most analyses project that we must utilize negative emission technologies (“NETs”) to avoid dangerous warming. Even the Paris Agreement anticipates the implementation of such carbon dioxide (“CO2”) removal technologies. Unfortunately, NETs are not ready for large-scale deployment. In many instances, their technologies remain uncertain; in others, their ability to operate at the scale required is unknown. Other uncertainties, including their costs, effectiveness, and environmental impacts have yet to be determined.

A means to accelerate the development and implementation of NETs is a policy ...


Dealing With Climate Change Under The National Environmental Policy Act, Climate Change--Laws Regulations And Rules, Environmental Impact Statements, Greenhouse Gases, Arnold W. Reitze Jr. Oct 2018

Dealing With Climate Change Under The National Environmental Policy Act, Climate Change--Laws Regulations And Rules, Environmental Impact Statements, Greenhouse Gases, Arnold W. Reitze Jr.

William & Mary Environmental Law and Policy Review

The National Environmental Policy Act (“NEPA”) was an important environmental law for several decades before climate change became an issue of concern. In the 1990s, efforts began to include in NEPA’s environmental assessments and environmental impact statements both the impact of federal government actions on climate change and the impact of climate change on proposed federal actions. These efforts were encouraged by the Council on Environmental Quality (“CEQ”). However, implementation at the agency level has since been uneven. Some federal agencies have resisted making serious efforts to incorporate climate change impacts into their decision-making process. Moreover, the courts have ...


Not So "Clean Diesel"-- How Germany's Protection Of Industry Risks The Health Of Its Citizens, Thomas White Oct 2018

Not So "Clean Diesel"-- How Germany's Protection Of Industry Risks The Health Of Its Citizens, Thomas White

William & Mary Environmental Law and Policy Review

“Clean Diesel.” This was the tagline of a significant advertising campaign that Volkswagen (“VW”) debuted in 2008. These advertisements attempted to counter the notion that diesel engines are dirty and polluted the air. It featured older women in Volkswagens discussing tales of what they knew about diesel engines (a play off the phrase “old wives tales”). At the time of airing, few could have predicted what was to come for VW and their eventual diesel engine scandal, the fallout of which is still ongoing at the time of writing this Note. As this Note will show, the myth of the ...


Silencing State Courts, Jeffrey Steven Gordon Oct 2018

Silencing State Courts, Jeffrey Steven Gordon

William & Mary Bill of Rights Journal

In state courts across the Nation, an absolutist conception of the First Amendment is preempting common law speech torts. From intentional infliction of emotional distress and intrusion upon seclusion, to intentional interference with contractual relations and negligent infliction of emotional distress, state courts are dismissing speech tort claims on the pleadings because of the broad First Amendment defense recognized by Snyder v. Phelps in 2011. This Article argues, contrary to the scholarly consensus, that Snyder was a categorical departure from the methodology adopted by New York Times Co. v. Sullivan, the landmark 1964 case that first applied the First Amendment ...


The New Jim Crow’S Equal Protection Potential, Katherine Macfarlane Oct 2018

The New Jim Crow’S Equal Protection Potential, Katherine Macfarlane

William & Mary Bill of Rights Journal

In 1954, the Supreme Court’s Brown v. Board of Education opinion relied on social science research to overturn Plessy v. Ferguson’s separate but equal doctrine. Since Brown, social science research has been considered by the Court in cases involving equal protection challenges to grand jury selection, death penalty sentences, and affirmative action. In 2016, Justice Sotomayor cited an influential piece of social science research, Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness, in her powerful Utah v. Strieff dissent. Sotomayor contended that the Court’s holding overlooked the unequal racial impact of ...


A Historical Examination Of The Constitutionality Of The Federal Estate Tax, Henry Lowenstein, Kathryn Kisska-Schulze Oct 2018

A Historical Examination Of The Constitutionality Of The Federal Estate Tax, Henry Lowenstein, Kathryn Kisska-Schulze

William & Mary Bill of Rights Journal

No abstract provided.


The Religious Freedom Restoration Act At 25: A Quantitative Analysis Of The Interpretive Case Law, Lucien J. Dhooge Oct 2018

The Religious Freedom Restoration Act At 25: A Quantitative Analysis Of The Interpretive Case Law, Lucien J. Dhooge

William & Mary Bill of Rights Journal

No abstract provided.


Dear Colleague: Due Process Is Not Under Attack At Colleges And Universities, As Shown Through A Comparative Analysis Of College Disciplinary Committees And American Juries, Mara Emory Shingleton Oct 2018

Dear Colleague: Due Process Is Not Under Attack At Colleges And Universities, As Shown Through A Comparative Analysis Of College Disciplinary Committees And American Juries, Mara Emory Shingleton

William & Mary Bill of Rights Journal

No abstract provided.