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William & Mary Law Review

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Full-Text Articles in Law

Rethinking Preemption And Constitutional Parameters In Bankruptcy, Michelle M. Harner Oct 2017

Rethinking Preemption And Constitutional Parameters In Bankruptcy, Michelle M. Harner

William & Mary Law Review

Chapter 11 of the U.S. Bankruptcy Code allows financially distressed businesses to reorganize and emerge from bankruptcy free of their pre-bankruptcy debts and obligations. In general, a business can achieve this kind of “fresh start” by confirming a plan of reorganization or pursuing a going-concern sale that typically facilitates a change in ownership, a reduction in leverage, and the elimination of most claims against the company’s assets. Through these kinds of transactions, a business can emerge from bankruptcy with a stronger balance sheet and often a new ownership structure. It also can streamline operations by, for example, assuming ...


The Information-Forcing Dilemma In Damages Law, Tun-Jen Chiang Oct 2017

The Information-Forcing Dilemma In Damages Law, Tun-Jen Chiang

William & Mary Law Review

Courts assessing compensatory damages awards often lack adequate information to determine the value of a victim’s loss. A central reason for this problem, which the literature has thus far overlooked, is that courts face a dilemma when applying their standard information-forcing tools to the context of damages. Specifically, the standard method by which courts obtain information is through a burden of proof. In the context of damages, this means a rule requiring plaintiffs to prove the value of a loss. But courts will often face a situation where a plaintiff can clearly prove the existence of a loss, yet ...


Pleading Patent Infringement: Res Ipsa Loquitur As A Guide, Andrew L. Milam Oct 2017

Pleading Patent Infringement: Res Ipsa Loquitur As A Guide, Andrew L. Milam

William & Mary Law Review

No abstract provided.


Equal Liberty In Proportion, Joshua E. Weishart Oct 2017

Equal Liberty In Proportion, Joshua E. Weishart

William & Mary Law Review

As federal law continues to devolve more education policy making to states, state courts will remain a primary forum for settling education rights. State fora do not inspire confidence, however, because their doctrine is so uncertain. A majority of state supreme courts do not specify a level of scrutiny and at times seem to be improvising judicial review. The resulting decisions can exhibit a troubling lack of foresight. Most notably, while federal doctrine increasingly reveals the interrelation of liberty and equality claims, state courts have failed to capitalize on that point—even though their decisions were among the first to ...


The Nature Of Sequential Innovation, Christopher Buccafusco, Stefan Bechtold, Christopher Jon Sprigman Oct 2017

The Nature Of Sequential Innovation, Christopher Buccafusco, Stefan Bechtold, Christopher Jon Sprigman

William & Mary Law Review

When creators and innovators take up a new task, they face a world of existing creative works, inventions, and ideas, some of which are governed by intellectual property (IP) rights. This presents a choice: Should the creator pay to license those rights? Or, alternatively, should the creator undertake to innovate around them? Our Article formulates this “build on/build around decision” as the fundamental feature of sequential creativity, and it maps a number of factors—some legal, some contextual—that affect how creators are likely to decide between building on existing IP or building around it. Importantly, creators are influenced ...


Historic Districts: Preserving The Old With The Compatible New, Emma Brandt Vignali Oct 2017

Historic Districts: Preserving The Old With The Compatible New, Emma Brandt Vignali

William & Mary Law Review

No abstract provided.


The Power Canons, Lisa Heinzerling May 2017

The Power Canons, Lisa Heinzerling

William & Mary Law Review

With three recent decisions—Utility Air Regulatory Group v. EPA, King v. Burwell, and Michigan v. EPA—the Supreme Court has embraced a new trio of canons of statutory interpretation. When an agency charged with administering a long-existing statute asserts regulatory authority it has not previously used, in a matter having large economic and political significance, its interpretation will be met with skepticism. When an agency charged with administering an ambiguous statutory provision answers a question of large economic and political significance, one central to the statutory regime, and the Court believes the agency is not an expert in the ...


Buying Happiness: Property, Acquisition, And Subjective Well-Being, David Fagundes May 2017

Buying Happiness: Property, Acquisition, And Subjective Well-Being, David Fagundes

William & Mary Law Review

Acquiring property is a central part of the modern American vision of the good life. The assumption that accruing more land or chattels will make us better off is so central to the contemporary preoccupation with acquisition that it typically goes without saying. Yet an increasing body of evidence from psychologists and economists who study hedonics—the science of happiness—yields the surprising conclusion that getting and having property does not actually increase our subjective well-being. In fact, it might even decrease it. While scholars have integrated the insights of hedonics into other areas of law, no scholarship has yet ...


The Problem Of Creative Collaboration, Anthony J. Casey, Andres Sawicki May 2017

The Problem Of Creative Collaboration, Anthony J. Casey, Andres Sawicki

William & Mary Law Review

In this Article, we explore a central problem facing creative industries: how to organize collaborative creative production. We argue that informal rules are a significant and pervasive—but nonetheless underappreciated—tool for solving the problem. While existing literature has focused on how informal rules sustain incentives for producing creative work, we demonstrate how such rules can facilitate and organize collaboration in the creative space.

We also suggest that informal rules can be a better fit for creative organization than formal law. On the one side, unique features of creativity, especially high uncertainty and low verifiability, lead to organizational challenges that ...


The Commercial Difference, Felix T. Wu May 2017

The Commercial Difference, Felix T. Wu

William & Mary Law Review

When it comes to the First Amendment, commerciality does, and should, matter. This Article develops the view that the key distinguishing characteristic of corporate or commercial speech is that the interest at stake is “derivative,” in the sense that we care about the speech interest for reasons other than caring about the rights of the entity directly asserting a claim under the First Amendment. To say that the interest is derivative is not to say that it is unimportant, and one could find corporate and commercial speech interests to be both derivative and strong enough to apply heightened scrutiny to ...


Exploring The Boundaries Of Obergefell, Andrew J. Pecoraro May 2017

Exploring The Boundaries Of Obergefell, Andrew J. Pecoraro

William & Mary Law Review

No abstract provided.


A Case Of Overcorrection: How The Ftc’S Regulation Of “Unfair Acts And Practices” Is Unfair To Small Businesses, Jennifer L. West May 2017

A Case Of Overcorrection: How The Ftc’S Regulation Of “Unfair Acts And Practices” Is Unfair To Small Businesses, Jennifer L. West

William & Mary Law Review

No abstract provided.


Why Congress Does Not Challenge Judicial Supremacy, Neal Devins Apr 2017

Why Congress Does Not Challenge Judicial Supremacy, Neal Devins

William & Mary Law Review

Members of Congress largely acquiesce to judicial supremacy both on constitutional and statutory interpretation questions. Lawmakers, however, do not formally embrace judicial supremacy; they rarely think about the courts when enacting legislation. This Article explains why this is so, focusing on why lawmakers have both strong incentive to acquiesce to judicial power and little incentive to advance a coherent view of congressional power. In particular, lawmakers are interested in advancing favored policies, winning reelection, and gaining personal power within Congress. Abstract questions of institutional power do not interest lawmakers and judicial defeats are seen as opportunities to find some other ...


Judicial Supremacy Revisited: Independent Constitutional Authority In American Constitutional Law And Practice, Mark A. Graber Apr 2017

Judicial Supremacy Revisited: Independent Constitutional Authority In American Constitutional Law And Practice, Mark A. Graber

William & Mary Law Review

The Supreme Court exercises far less constitutional authority in American law and practice than one would gather from reading judicial opinions, presidential speeches, or the standard tomes for and against judicial supremacy. Lower federal court judges, state court justices, federal and state elected officials, persons charged with administering the law, and ordinary citizens often have the final say on particular constitutional controversies or exercise temporary constitutional authority in ways that have more influence on the parties to that controversy than the eventual Supreme Court decision. In many instances, Supreme Court doctrine sanctions or facilitates the exercise of independent constitutional authority ...


In Defense Of Judicial Supremacy, Erwin Chemerinsky Apr 2017

In Defense Of Judicial Supremacy, Erwin Chemerinsky

William & Mary Law Review

“Judicial supremacy” is the idea that the Supreme Court should be viewed as the authoritative interpreter of the Constitution and that we should deem its decisions as binding on the other branches and levels of government, until and unless constitutional amendment or subsequent decision overrules them. This is desirable because we want to have an authoritative interpreter of the Constitution and the Court is best suited to play this role. Under this view, doctrines which keep federal courts from enforcing constitutional provisions—such as denying standing for generalized grievances, the political question doctrine, and the state secrets doctrine—are misguided ...


Judicial Supremacy And Taking Conflicting Rights Seriously, Rebecca L. Brown Apr 2017

Judicial Supremacy And Taking Conflicting Rights Seriously, Rebecca L. Brown

William & Mary Law Review

The best arguments in favor of judicial supremacy rely on its essential role of protecting rights in a democracy. The doctrinal technique of strict scrutiny, developed to do the work of judicial supremacy, has been an important tool in our constitutional jurisprudence in the service of rights protection. When the Supreme Court reviews laws that themselves seek to enhance or preserve constitutional rights, however, strict scrutiny does not provide the right approach. Rather, the Court should consider very carefully the rights claims in favor of the statute as well as those launched by a challenger. In such cases of conflicting ...


The Annoying Constitution: Implications For The Allocation Of Interpretive Authority, Frederick Schauer Apr 2017

The Annoying Constitution: Implications For The Allocation Of Interpretive Authority, Frederick Schauer

William & Mary Law Review

Constitutional constraints often restrict unwise or immoral official policies and actions, but also often invalidate laws and other official acts that are sound as a matter of both morality and policy. These second-order side constraints—or trumps—on even official acts that are sound as a matter of first-order policy reflect deeper or longerterm values, and they are central to understanding the very idea of constitutionalism. Moreover, once we see the Constitution as restricting not only the unsound and the unwise but also the sound and the wise, we can understand why expecting those whose sound ideas and policies are ...


Soft Supremacy, Corinna Barrett Lain Apr 2017

Soft Supremacy, Corinna Barrett Lain

William & Mary Law Review

The debate over judicial supremacy has raged for more than a decade now, yet the conception of what it is we are arguing about remains grossly oversimplified and formalistic. My aim in this symposium contribution is to push the conversation in a more realistic direction; I want those who claim that judicial supremacy is antidemocratic to take on the concept as it actually exists. The stark truth is that judicial supremacy has remarkably little of the strength and hard edges that dominate the discourse in judicial supremacy debates. It is porous, contingent—soft. And the upshot of soft supremacy is ...


Judicial Departmentalism: An Introduction, Kevin C. Walsh Apr 2017

Judicial Departmentalism: An Introduction, Kevin C. Walsh

William & Mary Law Review

This Article introduces the idea of judicial departmentalism and argues for its superiority to judicial supremacy. Judicial supremacy is the idea that the Constitution means for everybody what the Supreme Court says it means in deciding a case. Judicial departmentalism, by contrast, is the idea that the Constitution means in the judicial department what the Supreme Court says it means in deciding a case. Within the judicial department, the law of judgments, the law of remedies, and the law of precedent combine to enable resolutions by the judicial department to achieve certain kinds of settlements. Judicial departmentalism holds that these ...


Much Ado About Nothing: Signing Statements, Vetoes, And Presidential Constitutional Interpretation, Keith E. Whittington Apr 2017

Much Ado About Nothing: Signing Statements, Vetoes, And Presidential Constitutional Interpretation, Keith E. Whittington

William & Mary Law Review

During the Bush presidency, presidential signing statements became briefly controversial. The controversy has faded, but the White House continues to issue statements when signing legislation. Those statements frequently point out constitutional difficulties in new statutes and sometimes warn that the executive branch will administer the statutes so as to avoid those constitutional difficulties. This Article argues that the criticisms of signing statements were mostly misguided. Signing statements as such present few problems and offer some benefits to the workings of the American political system. While there might be reason to object to the substantive constitutional positions adopted in any given ...


Lessons From Ferguson On Individual Defense Representation As A Tool Of Systemic Reform, Beth A. Colgan Mar 2017

Lessons From Ferguson On Individual Defense Representation As A Tool Of Systemic Reform, Beth A. Colgan

William & Mary Law Review

This Article investigates the relationship between the decisions by lawmakers to use municipal and criminal systems to generate revenue and the lack of access to individual defense representation by using the Ferguson, Missouri, municipal court as a case study. The Article chronicles the myriad constitutional rights that were violated on a systemic basis in Ferguson’s municipal court and how those violations made the city’s reliance on the court for revenue generation possible. The Article also documents how the introduction of individual defense representation, even on a piecemeal basis, played a role in altering Ferguson’s system of governance ...


Forcing Players To Walk The Plank: Why End User License Agreements Improperly Control Players’ Rights Regarding Microtransactions In Video Games, Chelsea King Mar 2017

Forcing Players To Walk The Plank: Why End User License Agreements Improperly Control Players’ Rights Regarding Microtransactions In Video Games, Chelsea King

William & Mary Law Review

No abstract provided.


Indefiniteness As An Invalidity Case, Janet M. Smith Mar 2017

Indefiniteness As An Invalidity Case, Janet M. Smith

William & Mary Law Review

No abstract provided.


Legislative Exhaustion, Michael Sant’Ambrogio Mar 2017

Legislative Exhaustion, Michael Sant’Ambrogio

William & Mary Law Review

Legislative lawsuits are a recurring by-product of divided government. Yet the Supreme Court has never definitively resolved whether Congress may sue the executive branch over its execution of the law. Some scholars argue that Congress should be able to establish Article III standing when its interests are harmed by executive action or inaction just like private parties. Others, including most prominently the late Justice Antonin Scalia, argue that intergovernmental disputes do not constitute Article III “cases” or “controversies” at all. Rather, the Framers envisioned the political branches resolving their differences through nonjudicial means.

This Article proposes a different approach to ...


Pricing The Fourth Amendment, Miriam H. Baer Mar 2017

Pricing The Fourth Amendment, Miriam H. Baer

William & Mary Law Review

Critics have long decried the Fourth Amendment’s lack of an adequate remedy to secure its compliance. Neither the exclusionary rule nor the threat of civil liability deters police misconduct, leaving scholars to cast about for alternative measures. The emphasis on penalties, however, overlooks a different problem: detection. Because of policing’s fast-paced nature, even so-called “flagrant” Fourth Amendment violations trigger insufficient liability due to low probabilities of detection.

This Article addresses this problem by drawing on the Pigouvian tax literature. The Pigouvian tax—sometimes referred to as a “corrective tax”—is a pricing instrument imposed by regulators in an ...


Rethinking Corporate Governance For A Bondholder Financed, Systemically Risky World, Steven L. Schwarcz Mar 2017

Rethinking Corporate Governance For A Bondholder Financed, Systemically Risky World, Steven L. Schwarcz

William & Mary Law Review

This Article makes two arguments that, combined, demonstrate an important synergy: first, including bondholders in corporate governance could help to reduce systemic risk because bondholders are more risk averse than shareholders; second, corporate governance should include bondholders because bonds now dwarf equity as a source of corporate financing and bond prices are increasingly tied to firm performance.


Reliance On Nonenforcement, Zachary S. Price Feb 2017

Reliance On Nonenforcement, Zachary S. Price

William & Mary Law Review

Can regulated parties ever rely on official assurances that the law will not apply to them? Recent marijuana and immigration nonenforcement policies have presented this question in acute form. Both policies effectively invited large numbers of legally unsophisticated people to undertake significant legal risks in reliance on formally nonbinding governmental assurances. The same question also arises across a range of civil, criminal, and administrative contexts, and it seems likely to recur in the future so long as partisan polarization and sharp disagreement over the merits of existing law persist.

This Article addresses when, if ever, constitutional due process principles may ...


Protean Statutory Interpretation In The Courts Of Appeals, James J. Brudney, Lawrence Baum Feb 2017

Protean Statutory Interpretation In The Courts Of Appeals, James J. Brudney, Lawrence Baum

William & Mary Law Review

This Article is the first in-depth empirical and doctrinal analysis of differences in statutory interpretation between the courts of appeals and the Supreme Court. It is also among the first to anticipate how the Supreme Court’s interpretive approach may shift with the passing of Justice Scalia.

We begin by identifying factors that may contribute to interpretive divergence between the two judicial levels, based on their different institutional structures and operational realities. In doing so, we discuss normative implications that may follow from the prospect of such interpretive divergence. We then examine how three circuit courts have used dictionaries and ...


Netflix And Quill: Using Access And Consumption To Create A Plan For Taxing The Cloud, William L. Fletcher Jr. Feb 2017

Netflix And Quill: Using Access And Consumption To Create A Plan For Taxing The Cloud, William L. Fletcher Jr.

William & Mary Law Review

No abstract provided.


Data-Driven Discrimination At Work, Pauline T. Kim Feb 2017

Data-Driven Discrimination At Work, Pauline T. Kim

William & Mary Law Review

A data revolution is transforming the workplace. Employers are increasingly relying on algorithms to decide who gets interviewed, hired, or promoted. Although data algorithms can help to avoid biased human decision-making, they also risk introducing new sources of bias. Algorithms built on inaccurate, biased, or unrepresentative data can produce outcomes biased along lines of race, sex, or other protected characteristics. Data mining techniques may cause employment decisions to be based on correlations rather than causal relationships; they may obscure the basis on which employment decisions are made; and they may further exacerbate inequality because error detection is limited and feedback ...