Law Commons^™

The Judicial Grassroots Of The "Arbitration Revolution", Tamar Meshel

William & Mary Business Law Review

The “arbitration revolution”—the meteoric rise in the use of arbitration in the United States—is commonly imputed to the Supreme Court’s unilateral and ideologically driven expansion of the Federal Arbitration Act (FAA). The portrayal of the FAA’s evolution as a campaign launched by a Supreme Court that is out of touch with society and with the judicial system over which it presides usefully serves to delegitimize both this one-hundred year-old statute and arbitration more generally. This Article argues that the popular description of the Supreme Court as the sole instigator of the “arbitration revolution” is misleading because it conveniently ignores a …

Liu And The New Sec Disgorgement Statute, Andrew N. Vollmer

William & Mary Business Law Review

In early 2021, Congress enacted a new statute for enforcement cases brought by the Securities and Exchange Commission. The new statute resolved important questions about the availability of disgorgement as a remedy in SEC enforcement cases, but it created other questions. The purpose of this Article is to discuss one interpretive issue that is already arising in the federal courts of appeals.

That interpretive issue is whether “disgorgement” as authorized by the new statute must abide by equitable limitations the Supreme Court imposed on disgorgement relief in SEC cases in Liu v. SEC, 140 S. Ct. 1936 (2020). The …

The Corporate Right To Bear Arms, Robert E. Wagner

William & Mary Business Law Review

The ability of a corporation to exercise constitutional protections has been rife with uncertainty and change since the conception of corporate rights came into existence. The history and rapid development of the corporation, combined with the misapplied and misunderstood “corporate personhood” theory, have resulted in an almost unintelligible hodgepodge of corporate constitutional applications. Similarly, the concept of the right to bear arms has equally been muddled and applied very differently at varying times and locations since before the establishment of the Second Amendment. This Article attempts to clarify how an alternative to the “corporate personhood” theory, namely the “purpose” theory …

Killing Two Birds With One Stone: Remedying Malicious Social Bot Behavior Via Section 230 Reform, Jackson Smith

William & Mary Business Law Review

As “interactive computer services” (social media sites) expanded over the past decade, so too did the prevalence of “social bots,” software programs that mimic human behavior online. The capacity social bots have to exponentially amplify often-harmful content has led to calls for greater accountability from social media companies in the way they manage bot presence on their sites. In response, many social media companies and private researchers have developed bot-detection methodologies to better govern social bot activities. At the same time, the prevalence of harmful content on social media sites has led to calls to reform Section 230 of the …

Likes, Camera, Action: Safeguarding "Child Influencers" Through Expanded Coogan Protections And Increased Regulation Of Social Media, Dana D. Joss

William & Mary Business Law Review

As a result of the increased popularity of influencer marketing, various “child influencers” have risen to stardom on popular social media platforms such as YouTube, TikTok, and Instagram. To date, these children have no protections under the law to safeguard them from the dangers of the influencer industry. Namely, there are no safeguards from financial exploitation by parents and guardians; children hold no guarantee that they can retain their earnings from social media. Further, there are no regulations in place regarding the number of hours child influencers may work and such children sometimes maintain little control over the extent of …

Wandering Mind As Fiduciary Breach: Cognitive Duties Of Corporate Directors, David Yosifon

William & Mary Business Law Review

Drawing on contemporary science and ancient wisdom, this Article assesses the ubiquitous human problem of mind wandering as it relates to the fiduciary obligations of corporate directors. Directors must endeavor to advance shareholder interests carefully and loyally. Boards have extremely wide latitude to determine the substance of corporate policies, but the law imposes certain process obligations on corporate decision-making with particularity. Directors must approach their decision-making in an informed and deliberate way. They must listen to reports, and they must deliberate with their fellow directors before voting on corporate action at board meetings. This Article identifies the duty to concentrate …

The First Byte Rule: A Proposal For Liability Of Artificial Intelligences, Hilyard Nichols

William & Mary Business Law Review

Artificial Intelligences (AIs) are a relatively new addition to human civilization. From delivery robots to board game champions, researchers and businesses have found a variety of ways to apply this new technology. As it continues to grow and become more prevalent, though, so do its interactions with society at large. This will create benefits for people, through cheaper or better products and services. It also has the possibility to create harm. AIs are not perfect, and as the range of AI uses grows, so will the range of potential harms. A mistake from an AI customer service bot could fraudulently …

Unauthorized Disclosure Of Tax Return Information: When Is The United States Liable For Actions Of The Irs?, Tammy W. Cowart, Roger Lirely, Alex Brandt

William & Mary Business Law Review

The June 2021 ProPublica report “The Secret IRS Files: Trove of Never-Before-Seen Records Reveal How the Wealthiest Avoid Income Tax” revealed tax return data of many of the wealthiest people in America. However, the tax information about these individuals is not public information. As part of the Tax Reform Act of 1976, Congress removed tax returns and return information from the realm of public documents and protected them under federal law. Congress also provided criminal and civil sanctions for the unauthorized disclosure of tax returns and return information. Over forty-five years later, there have been hundreds of cases adjudicated, but …

Caging The Bored Ape: How The Ftc's Expanded Anti-Monopoly Authority Can Tame "Nfts" For Web 3.0, J. Scott Colesanti

William & Mary Business Law Review

Non-Fungible Tokens, or “NFTs,” ballooned into a 40-billion-dollar industry in under a decade. Their creators include artists, corporations, entrepreneurs, fraudsters—and even Donald Trump. While NFT owners and traders could be any of us, the parties running the marketplaces are hidden. NFT regulators have yet to be identified. Most alarmingly, the dominant NFT marketplaces are dangerously centralized. Accordingly, the publicized tales of exorbitant or manipulated NFT prices and frequent related scams abound. Meanwhile cryptocurrency—the technology enabling the life of an NFT—remains beset with, at best, theoretical models for effective regulation a full generation after its emergence.

To propose a rational start …

A New Dawn For The Common Law: A Proposal For A New Court System For The Asean Trade In Goods Agreement, Nicholas R. Gucciardo

William & Mary Business Law Review

The Association of Southeast Asian Nations (ASEAN) formed the ASEAN Trade in Goods Agreement (ATIGA) to facilitate trade liberalization between the bloc’s members. The ASEAN Member States have continued to implement the agreement according to the dispute settlement mechanism set out in the ASEAN Protocol on Enhanced Dispute Settlement Mechanism (Protocol). However, this Note will argue that the current dispute settlement mechanism (DSM) is inadequate because the panel system does not always provide a final forum for disputes between Member States. A new mechanism is necessary to better adhere to the principles of the ASEAN Charter, strengthen Southeast Asia as …

No Equitable Relief: The Failings Of The Case Act To Protect Middle-Class Creatives From Copyright Infringement, Eliza James Unrein

William & Mary Business Law Review

Copyright law in the United States incentivizes creative activity for the public benefit by granting creators an exclusive right to control their original works. Many individuals and small businesses rely on this right and the protection of copyright law to build their reputations as artists, create a market for their work, and secure a livelihood for themselves and their families. When someone violates this right and infringes on these individuals’ and small businesses’ copyrights, the forum for seeking redress and preventing future infringement is a lawsuit in federal court. But bringing a copyright infringement claim in federal court is expensive. …

Disability And Transnational Arbitration: Human Rights Linkages And Reasonable Accommodations, Ilias Bantekas

William & Mary Business Law Review

Disability intersects with arbitration as regards the mental capacity of a party to enter into an arbitration agreement, the appointment of arbitrators with disability and grounds for removal thereof, accommodations during arbitral proceedings for arbitrators and counsel with disabilities, as well as the costs for all appropriate accommodations. This Article demonstrates that the right to a fair trial, which is universally recognized in arbitration, dictates that parties and arbitral institutions be free to select arbitrators of their choice, and no impediments may be imposed against arbitrators with disabilities other than that they are able to fulfill the functions of their …

Impediments To Renewed And Reinvigorated Antitrust Enforcement, Edward D. Cavanagh

William & Mary Business Law Review

Antitrust Division head Jonathan Kanter recently proclaimed that “the era of lax enforcement is over, and the new era of vigorous and effective antitrust law enforcement has begun.” Federal enforcers have indeed been active; the DOJ has sued Google in two separate actions, and the FTC has brought an action against Facebook.

While bringing these cases is an important first step to achieving a more robust antitrust enforcement regime, a significant obstacle to an antitrust renaissance remains—overcoming the strong gravitational pull of Chicago School theory that has dominated antitrust thought for the past half-century. Chicago School principles have not kept …

Securities And Exchange Commission Vs. Kim Kardashian, Cryptocurrencies And The "Major Questions Doctrine", Jerry W. Markham

William & Mary Business Law Review

The SEC has brought some highly publicized enforcement actions against Kim Kardashian and other celebrity social media influencers who received undisclosed payments for their endorsement of cryptocurrencies. This Article describes those cases and analyzes whether the SEC exceeds its authority under the Constitutional “major questions doctrine” recently applied by the Supreme Court in West Virginia v. EPA. That doctrine prohibits a federal agency from regulating activities that raise a major question that Congress, rather than the agency, must resolve. Such a question is one in which there is major political and economic interest and over which the agency has …

The Future Of China's U.S.-Listed Firms: Legal And Political Perspectives On Possible Decoupling, Rebecca Parry, Qingxiu Bu

William & Mary Business Law Review

There is a long history of Chinese firms raising capital on leading U.S. exchanges. These shares have proved attractive and are estimated at $1 trillion value, in spite of deep mismatches between Chinese internal approaches to corporate governance and those taken under U.S. securities regulations. Chinese listings of nonstate firms, particularly in the technology sector, had depended on a largely laissez-faire initial approach to the expansion through foreign listings, including tolerance of the opaque Variable Interest Entity (VIE) structures adopted as a means to bypass Chinese restrictions on foreign ownership. Concerns regarding data security had, however, prevented compliance by Chinese …

The Ai Quid Pro Quo Problem: Suggesting A Framework For Patents Involving Artificial Intelligence-Assisted Or -Created Inventions, Daniel Wicklund

William & Mary Business Law Review

Innovation involving artificial intelligence (AI) is rapidly expanding and diffusing into other areas of technology. Additionally, inventors have been using AI to assist in new technology for quite a while and have likely received patents from the United States Patent and Trademark Office (USPTO or “Office”) for their inventions without disclosing the AI involved in the patentable subject matter. As AI has become increasingly present in the implementation of new technology, the question of whether an AI can be an inventor has arisen. In Thaler v. Iancu and on appeal, the courts have affirmatively said no. However, this decision implicates …

Canceling Difficult Cancellation: An Analysis Of Recent Regulatory Efforts To Make Canceling Subscriptions Easier, Carter Mccants

William & Mary Business Law Review

The subscription-based economy is on the rise, and so are complaints of difficult cancellations. Companies utilize coercive and exploitative techniques, known as “dark patterns,” to trap consumers in subscription-based services. One notorious “dark pattern” is the “click-to-subscribe, call-to-cancel” scheme, whereby individuals can sign up online. But, when it comes time to cancel, many consumers often find themselves waiting on hold for hours.

In the interest of consumer welfare, subscription-based services should be as easy to cancel as they are to sign up for. Accordingly, this Note discusses the merits of recent crackdowns on cancellation barriers, including the Federal Trade Commission’s …

A Chair With No Legs? Legal Constraints On The Competition Rule-Making Authority Of Lina Khan's Ftc, Jennifer Cascone Fauver

William & Mary Business Law Review

Upon her appointment to the chair position of the Federal Trade Commission (FTC), Lina Khan wasted little time asserting that the Agency possesses the regulatory authority to promulgate rules related to unfair methods of competition. And the President has supported the Chair’s proffered authority, requesting that the Agency use that authority to address competition concerns across the U.S. economy. Chair Khan’s interpretation of the FTC Act relies on a single case decided by the Supreme Court in 1973—National Petroleum Refiners—and judicial deference under Chevron. However, while simplistic in its logic, Chair Khan’s support for the FTC’s competition …

Critiquing The Sec's Ongoing Efforts To Regulate Crypto Exchanges, Carol R. Goforth

William & Mary Business Law Review

Despite the so-called “Crypto Winter” in the spring of 2022, which saw a deep plunge in global crypto markets, interest in the appropriate way to develop, use, and regulate cryptoassets and crypto-based businesses continues to be high. In the United States, a Presidential Executive Order and multiple bills that seek to tackle various issues of crypto regulation are regularly highlighted in the news, suggesting the appropriate treatment of crypto is a growing national priority. Despite these discussions, which tend to focus on finding a balanced way to regulate those within the industry without stifling the technology, the Securities and Exchange …

Privatization Of Employment Claims: Perhaps A Hybrid Approach Will Free American Society From The Epic Trap The Supreme Court Has Sprung Without Forfeiting All Advantages Of Arbitration, Weyman Johnson, Kailyn G. Coots, Alexander Edmonds

William & Mary Business Law Review

Mandatory individual arbitration, as a condition of employment, binds many U.S. employees after the Supreme Court’s 2018 decision in Epic Systems Corp. v. Lewis. In effect, fundamental employment protections—such as relief under current anti-discrimination statutes—are privatized. Now, only a legislative fix will break those bonds. Congress and state legislatures have ventured into the fray, though preemption problems plague the latter, and both seem fixated on either excessively narrow categories (harassment claims in employment) or politically distasteful, broad solutions (no individual arbitration allowed in employment or consumer contracts). This Article acknowledges the quandary that the Epic decision, and the Court’s …

Death Of A Corporation: How A Seemingly Innocuous Probate Provision Can Fundamentally Undermine The Corporate Form, Kenya Jh Smith

William & Mary Business Law Review

Imagine that you are assisting the surviving shareholders and officers of a corporation in settling affairs with the estate of a deceased shareholder. In a corporate governance dispute that ensues, the estate representative uses a seemingly innocuous probate provision allowing him to “continue any business” of the deceased to petition the probate court for direct control of the corporation. You find that there is little statutory or jurisprudential guidance on coordinating that probate provision with longstanding corporate governance requirements that directors, not shareholders, directly manage corporate affairs. This Article explores the unintended consequences of allowing a misplaced but literal reading …

Tackling Discrimination In The Nfl: How The Recent Cte Race-Norming Agreement Highlights The Need To Provide Broader Anti-Discrimination Protections For Nfl Players Through Collective Bargaining Agreements, Victoria Nauman

William & Mary Business Law Review

Chronic traumatic encephalopathy (CTE) is becoming a commonly known consequence of playing football. Many have become stunned at the effects of CTE among some of the National Football League’s (NFL) most popular players. While the NFL agreed to compensate players who have suffered the effects of CTE, they did not do so fairly. The NFL employed practices of racial-baselining cognitive brain evaluations to systemically provide Black players with lower CTE settlement payouts than their white counterparts. Though shocking, this is but one instance of the NFL discriminating against their players of color in a majority-minority league. However, settling out of …

Private Inequity: Reform Rule 506 To Safely Accommodate Investment By Nonaccredited Investors, Allen C. Page

William & Mary Business Law Review

In 2012, Congress enacted Title III of the Jumpstart Our Business Startups Act (the “JOBS Act”), which it named the Crowdfund Act, to create an exemption from registration under the Securities Act of 1933 that, in the words of President Barack Obama, would allow “ordinary Americans . . . to go online and invest in entrepreneurs that they believe in.” While perhaps well-intentioned in principle, Regulation Crowdfunding imposes material limitations and costs on the issuer, leading most issuers to conclude that the inclusion of unaccredited investors in a crowdfunding campaign is not worth the complexity and expense. Furthermore, the most …

Reconciling Corporate Interests With Broader Social Interests - Pursuit Of Corporate Interests Beyond Shareholder Primacy, Yong-Shik Lee

William & Mary Business Law Review

A seminal case in corporate law, Dodge v. Ford Motor Co., set the cardinal principle that corporations must serve the interests of shareholders rather than the interests of employees, customers, or the community. This principle, referred to as “shareholder primacy,” has been considered a tenet of the fiduciary duty owed by corporate directors. Scholars have disagreed on the current legal status of shareholder primacy. This Article examines the controversy in light of the current state legislation and case law. Regardless of its current legal status, shareholder primacy has influenced corporate behavior and encouraged short-term profit-seeking behavior with significant social …

The Time Is Now: A Call For Federal Elimination Of Non-Competes Against Low-Wage And Hourly Workers In The Wake Of The Pandemic, Lori N. Ross

William & Mary Business Law Review

The COVID-19 pandemic has greatly impacted the United States’ labor market and has led to an economic recession. Millions of Americans lost their jobs as a result of the pandemic and were forced to apply for unemployment benefits. Consequently, many of these workers were confronted with the question of whether their existing non-compete agreements were enforceable. Not surprisingly, courts across the nation started seeing more pandemic-related litigation surfacing during the second part of 2020, related to employees seeking a declaration that these agreements were unenforceable.

Prior to the pandemic, there was a rise in the use of noncompete agreements at …

Who Owns The Meme?: Establishing A Definitive Framework To Resolve Disputes In Social Media Account Ownership Between Employers And Employees, Tom Galvin

William & Mary Business Law Review

The pervasive nature of social media and its growing impact on every aspect of society has created a novel issue: who owns a social media account, an employer or an employee, following the termination of the employment relationship? Courts thus far have produced an inconsistent and confusing legal terrain that will only continue to breed uncertainty amongst parties involved in disputes over social media account ownership. This Note examines the current jurisprudence, analyzes its strengths and weaknesses, proposes a definitive framework to determine ownership between the parties, and demonstrates that framework using the facts of an ongoing case. This framework …

Keeping Gates Down: Further Narrowing The Computer Fraud And Abuse Act In The Wake Of Van Buren, George F. Leahy

William & Mary Business Law Review

Internet-connected devices have become essential parts of personal and professional life. As these devices have grown in importance and prevalence in the workplace, so too have federal computer regulations come into the spotlight. Prior to the Supreme Court’s Decision in Van Buren v. United States, the Circuit Courts of Appeals were split on the interpretation of the “exceeds authorized access” clause of the Computer Fraud and Abuse Act (CFAA), a commonly invoked federal law that imposes criminal and civil liability for computer misuse. Although the Court’s narrow holding clarified the definition of “exceeds authorized access,” the Court did not …

Brick By Brick: Deconstructing Pyramid-Like Companies By Requiring Disclosures From Multilevel Marketing Schemes, Alex Chumbley

William & Mary Business Law Review

Multilevel marketing companies ("MLMs") have thrived in the internet era as participants are able to market their products to their friends and followers on social media sites. Further, periods of high unemployment, such as during the COVID-19 pandemic, have led to increased enrollment in these companies. However, very few people actually make any money from selling for these companies. Beyond that, almost half of those who participate lose money due to the enrollment costs. This Note examines past case law surrounding MLMs and critiques the current regulations in place that fail to ensure that new participants are making a fully …

Detoxing From Clean Claims: Bridging The Gap Between "Clean" And "Dirty" Beauty, Alecsandra Dragus

William & Mary Business Law Review

The clean beauty industry has gained increasing popularity in the last couple of years. This has spurred the development of many brands and impacted what consumers look for in their products. This Note engages in the existing conversation in the beauty industry pertaining to "clean" products by showing that the lack of interference from the Food and Drug Administration (FDA) and the Federal Trade Commission (FTC) to set definitional criteria for what constitute ''clean" products has resulted in an increase in the commercialization of health-conscious consumer beliefs based on ambiguous and misleading information. These consumers are stuck in a loop …

Allocation Of Property Appreciation: A Statutory Approach To The Judicial Dialectic, Lawrence Ponoroff

William & Mary Business Law Review

Many, perhaps the majority, of Chapter 13 cases end up being converted to Chapter 7. The converted Chapter 7 case is not a new case, it is a continuation of the case that was commenced with the filing of the original Chapter 13 petition. However, there are important structural differences between the two chapters, including over what constitutes property of the estate. This creates some thorny issues surrounding whether property of the estate as generally defined in section 541(a) of the Bankruptcy Code or property of the estate as specifically defined in Chapter 13 controls in determining the scope of …