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Publicity Rights After Warhol, Mark Bartholomew

Journal Articles

Andy Warhol has been proclaimed the most important artist of the twentieth century, but his influence extends farther than the art world. Given his renown, judges have cited his work, including his reworkings of celebrity photographs, as quintessentially protected expression. But this may be changing with the Supreme Court’s recent decision in Andy Warhol Foundation v. Goldsmith, which curtails the ability of creators to claim “transformative” fair use when they borrow aspects of a copyrighted work for commercial purposes. Moving beyond the decision’s copyright implications, this Article explores its potential ripple effect on publicity rights law. Although publicity rights …

Mutual Fund Fees, Stewart L. Brown

William & Mary Business Law Review

Investors pay billions annually in fees for actively managed mutual funds, despite the availability of far superior, cost-effective alternatives like index funds. Mutual funds, with their unique legal structure, insulate management fees from competitive pressures, thereby enabling fund sponsors to maintain high fees. Contrary to the assumption that legal, regulatory, and governance mechanisms adequately protect investors, this Article demonstrates that such safeguards are largely ineffective. The competitive forces that would ordinarily drive fee reductions are rendered impotent by structural conflicts of interest, ineffective regulatory oversight, and the passive role of independent directors. Fund sponsors capitalize on economies of scale, reaping …

From Amateurism To Open Markets: The Ncaa's Reckoning With Antitrust Lawsuits, Jesse Giffin

William & Mary Business Law Review

Throughout the 2000s the National College Athletic Association (NCAA) has been the subject of many high-profile antitrust lawsuits regarding the financial restrictions imposed on student athletes. The aftermath of some of the most recent decisions has given athletes new ways to earn compensation while competing in college athletics. In House v. NCAA, another historic antitrust lawsuit against the NCAA, the Court for the Northern District of California was tasked with deciding whether student athletes can be paid directly for their athletic performance. By comparing these NCAA antitrust lawsuits with other blockbuster antitrust cases such as the Microsoft antitrust case, …

Through The Lens Of Natural Selection: Understanding The Development And Adoption Of Legal Forms Of Business Organization, Brent J. Horton

William & Mary Business Law Review

This Article makes three contributions to the scholarship on the development and adoption of legal forms of business organization (LFBO). First, this Article examines how Charles Darwin’s theory of natural selection (i.e., variation, selection, and inheritance) can provide an overarching framework that can integrate previous theories of LFBO evolution propounded by Hurst, Blair, Hansmann, Kraakman, and Squire.

Second, Hurst, Blair, Hansmann, Kraakman, and Squire focused primarily on the evolution of joint stock companies and corporations during the American Industrial Revolution. This Article uses the lens of natural selection to explain the development and adoption of more recent forms of business …

Legal Reform And Cultural Resistance: Examining The Role Of Law And Custom In Ending Fgm In Egypt, Souhaila Hafez Abo Seada

Theses and Dissertations

This thesis examines the persistent gap between legal reform and social practice in efforts to end Female Genital Mutilation (FGM) in Egypt. Although FGM has been criminalized since 2008, with stronger penalties introduced in 2016 and 2021, the practice continues, revealing the limits of law when it operates alongside powerful social, religious, familial, and medical norms. Using a qualitative case-based approach grounded in legal pluralism and Feminist Critical Discourse Analysis, the study draws on 11 semi-structured interviews with participants from civil society, religious institutions, the legal profession, the medical sector, and communities where FGM persists, alongside legislative, demographic, and documentary …

Property Law For Positive Externalities: Carving New Sticks For The Bundle, J.B. Ruhl, James Salzman

William & Mary Law Review

Property law has long confronted a troubling puzzle: Why does doctrine focus so much on eliminating harms flowing as negative externalities from uses of property—curbing pollution, nuisances, and other harmful land uses—while largely ignoring the potential to encourage positive externalities? Why such a strong focus on preventing bads instead of promoting goods? Using a case of a natural capital resource and the ecosystem services of flood control, water purification, and pollination it provides, this Article explains how and why existing doctrine fails to recognize these benefits as distinct property interests, leading to systematic underinvestment in conservation and service provision. We …

Skrmetti And The Problem Of Incidental Intent, Martin Katz

William & Mary Law Review

The modern Supreme Court has defined “discriminatory intent” as a strict-liability concept. It does not matter why the government sorts people by a protected characteristic, such as race or sex; it matters only that the government does sort people by such a characteristic. This principle is the key holding of affirmative-action cases, such as Students for Fair Admissions, Inc. v. President & Fellows of Harvard College. Yet, in the recent case United States v. Skrmetti, the Court seemed to focus not on the question of whether the government sorted people by sex (it did), but on the question …

When Antitrust Meets Labour: Exemption And Enforcement Under Article 101 Tfeu, Giulia Mangiafico

Yearbook of Antitrust and Regulatory Studies

Labour rights protection has recently emerged as one of the key objectives of antitrust law, alongside sustainability and privacy. The application and enforcement of competition rules differ significantly between the workers’ and employers’ sides of the market, a distinction that is particularly visible in cases concerning remuneration. Wage-setting may fall within the scope of Article 101 TFEU where it results from coordination between undertakings; whether competition law applies therefore depends on how wages are fixed. While employer cartels that suppress pay are treated as restrictive agreements, collective bargaining arrangements are assessed under a markedly different analytical framework. This article examines …

The Undue Degradation Of "Undue Degradation": How Loper Bright Threatens To Weaken Environmental Protections For Domestic Lithium Operations, Griffin M. Krawitz

William & Mary Law Review

On October 24, 2024, the Bureau of Land Management (BLM) approved the Rhyolite Ridge Lithium-Boron Project, a seven-thousand- acre mining operation in the middle of the Nevada desert. Denoted as the “first domestic lithium project to get full regulatory approval under the Biden Administration,” the new mine is projected to supply enough batteries to power roughly 370,000 electric vehicles (EVs) every year for the next twenty-three years. Despite concern that the mine parallels and threatens the habitat for the Tiehm’s buckwheat (the only known habitat containing the critically endangered and culturally significant flower), the BLM has been adamant that its …

Is History Precedent?, Allison Orr Larsen

Faculty Publications

It has been just over three years since the Supreme Court instructed lower courts to evaluate Second Amendment challenges by examining history and tradition. And it is no secret that the courts have struggled. This Article tackles a phenomenon that is born of that struggle. Overwhelmed by the task of evaluating historical claims, lower courts instead are turning to other judges as authorities on history. They are using what I call in this Article “historical precedents”—meaning language about history from an older decision that the subsequent judge then treats as authority, not as part of a legal rule but for …

Differential Validity In Fair Lending, Spencer Caro, Talia B. Gillis, Scott Nelson

Faculty Scholarship

Fair lending’s disparate impact doctrine aims to address lending disparities. But which disparities? Traditional fair lending has narrowly focused on equal outcomes — examining differences in loan approval rates or interest rates. However, this singular focus overlooks other dimensions of disparities that are essential for fair credit access. This article challenges the conventional emphasis on equal outcomes, demonstrating how it has failed to address deep-rooted inequalities in traditional credit allocation while also stifling innovation in machine-learning and alternative data. We argue that disparities in the validity of creditworthiness predictions — the accuracy with which a model identifies creditworthy applicants — …

Government & Insurance Update, James Budd Mpp

The Journal of the Michigan Dental Association

This governmental update details Michigan House Bills 4593 and 4594, which aim to restore statutory standards for dental specialty advertising The proposed legislation restricts the use of specialty titles and letters to dentists who hold state-recognized specialty licenses in one of twelve specific fields, such as endodontics or pediatric dentistry Supported by the MDA, these bills seek to enhance patient protection and ensure transparency by preventing practitioners without accredited training from misleading the public.

J Mich Dent Assoc February 2026

The Journal of the Michigan Dental Association

Each month, the Journal of the Michigan Dental Association delivers news, information, and features about Michigan dentistry to our state's oral health community and the MDA's 6,200+ members. It remains the main publication reaching Michigan dentists and is available worldwide through ADA Commons.

The February 2026 (Volume 108, No. 2) issue of the Journal is published in a digital format to provide updates and insights for Michigan's oral health community and MDA members. Print editions occur every other month beginning with January.

This issue includes feature articles on Risk Management and 2025 Servant Leadership as well as a clinical reprint …

News You Need, David Foe

The Journal of the Michigan Dental Association

This news update summarizes MDA Board of Trustees activities, including the 2026 budget approval and legislative advocacy for licensure reform and Social Security privacy. It promotes National Children’s Dental Health Month and the biennial Mission of Mercy event. The news covers the appointment of a new Chief Experience Officer, the launch of the MDA Matters video podcast, and announcements for scholarships and award-winners.

Flexible Funding Authorities To Support Tribal Climate Adaptation, Monte Mills, Sydney Anderson, Lauren Young

Articles

This project is part of a policy research effort intended to support Tribes, federal agencies, and Tribal and non-Tribal organizations in addressing some of the climate adaptation barriers and needs experienced by Northwest coastal Tribes. Accessing and administering Federal funds is a significant challenge for Tribes. Existing federal funding sources are often accompanied by rigid rules that make it difficult for Tribes to flexibly allocate funds as needed, and include strict qualification criteria that limit Tribal access to funds. Short-term funding cycles can be disruptive to long-term staffing and project needs, and are often misaligned with Tribal priorities.

The Brady Materiality Standard, Brandon L. Garrett, Adam M. Gershowitz

Faculty Publications

The Brady doctrine requires prosecutors to disclose all favorable and material evidence to the defense. To effectuate that rule, the U.S. Supreme Court has defined materiality as a “reasonable probability” that the evidence would have affected the outcome at trial. But apart from that definition, the Court has resisted offering any further guidance to lower courts. While far too little is known about how Brady materiality claims are actually adjudicated, there is strong evidence that courts often reject Brady claims involving withheld evidence on the grounds that the evidence was not significant enough to be material.

To examine how Brady …

The Case For An African Investment Court (Aic), Won L. Kidane

Faculty Publications

No abstract provided.

Originalism, Official History, And Perspectives Versus Methodologies, Keith N. Hylton

Faculty Scholarship

This paper addresses a well-worn topic: originalism, the theory that judges should interpret the U.S. Constitution in a manner consistent with the intent of its framers. I am interested in the real-world effects of originalism. The primary effect advanced by originalists is the tendency of the approach to constrain the discretion of judges. However, I identify another effect of originalism: the creation of official histories, a practice that imposes a hidden tax on society. Another question I consider is whether originalism should be considered a methodology of analyzing the law or a perspective on the law; I argue that originalism …

The Case For Ai Authorship In Copyright Law, Cheng Lim Saw, Duncan Lim

Research Collection Yong Pung How School Of Law

Today, with generative AI, literary and artistic works can be created almost effortlessly. There is at present intense debate as to whether works generated by AI – broadly categorised as “AI-assisted” and “AI-generated” works – ought to attract copyright protection. AI-assisted works are those that involve some degree of human intervention. Where AI-generated works are concerned, however, such works are created autonomously by the AI itself with minimal (de minimis) input from an identifiable human being. Presently, it is generally accepted that AI-generated works do not attract copyright protection for want of a human author. This article examines whether it …

Topple Headfirst Into The Dark: Restorative Justice In Missouri And Hope For The Future, Emma Donaldson

Journal of Dispute Resolution

Imagine you are not reading this article. Instead, you are walking back home from dinner with your friends. As you walk down the street, someone comes up behind you and demands you hand them your money. You turn around to give them all the money you have, only to lock eyes with the barrel of a gun. What are you feeling in this moment? A little bit of rage perhaps. Maybe your hands have started shaking. Or, just maybe, you are feeling a little defiant. But before you can even react, a police officer is running down the street, yelling …

Resolving Ranks: The Role Of Adr In Military Justice, Dane Puckett

Journal of Dispute Resolution

The United States (U.S.) Armed Forces is composed of seven military branches: Army, Navy, Air Force, Marine Corps, Coast Guard, National Guard, and Space Force. Each military branch has an alternative dispute resolution (“ADR”) program. These programs use a collection of techniques, generally informal and collaborative in nature, to resolve disputes as a substitute for litigation. The characteristics of ADR proceedings tend to produce quicker, less expensive outcomes compared to litigation. This very reason is why Congress enacted the Administrative Dispute Resolution Act (“ADRA”) of 1996, directing federal agencies to establish ADR policies and programs.

The Comparator Argument In Trans-Healthcare Ban Cases, Craig Konnoth

UC Law Journal

As states have increasingly restricted gender affirming care for minors across the nation (reinforced by a recent Executive Order by President Trump), and though the Supreme Court ruled on one such state ban, a powerful argument has largely been overlooked. This argument emphasizes the fact that transgender minors are not alone in receiving gender affirming care. Cisgender minors also receive such care for precisely the same reasons as transgender minors— unwanted breast tissue development, undesired hair growth, unusual vocal development, and puberty onset. Indeed, cisgender children receive such care at higher numbers than trans children, and many of the medications …

A Case Against Mass Deportation: The Japanese American Internment Camps And Recent Treatment Of Korematsu, Isaac Bloch

UC Law Journal

The large-scale deportation of non-citizens has become a preeminent policy issue. Unfortunately, executive curtailment of immigrant communities’ liberty is not without historical parallels. During World War II, federal officials sent individuals of Japanese descent to internment camps through a series of executive orders and military proclamations. Although attorneys in the Department of Justice believed aspects of these actions were unconstitutional at the time, the administration prevailed at the nation’s highest court. Can recognition of this past wrong aid challenges to contemporary immigration enforcement regimes? How do our courts formally account for the most egregious jurisprudential errors of the past, and …

Finding Luis: A Creative Nonfiction Account Of Law & Society, Jason M. Leggett

Dissertations, Theses, and Capstone Projects

This essay explores the contradictions in legal theory and human experience through creative nonfiction. Its main purpose is to argue that a truly just society requires acknowledging the profound influence of individual narratives on the law. This is supported by blending personal narratives, critical analysis, and philosophical inquiry to reveal the gap between codified law and lived realities for marginalized individuals. This unique Legal Poetics methodology employs a series of six vignettes, such as the author's and Luis's shared experiences with traumatic brain injury and the denial of justice, as data. By integrating autoethnography, law as narrative, and performativity theories, …

Drug Scheduling As Institutional Design, Matthew B. Lawrence, David E. Pozen

Faculty Scholarship

Controlled Substances Act (CSA), U.S. drug law has simultaneously fueled mass incarceration, inhibited needed access, and enabled an opioid crisis. To make better choices, this Article argues that the CSA’s institutional design must account for three distinctive features of psychoactive drugs: the prohibition problem (drug bans tend to backfire when demand is inelastic), the pharma problem (drug companies have supercharged incentives to manipulate markets and exploit consumers), and the pluralism problem (drug policy involves irreducibly political questions that no expert discipline can answer). On their own, each of these problems calls for reform to the CSA. Taken together, they call …

Does Law Constitute Society?, Jeremy K. Kessler

Faculty Scholarship

The resistance of capitalist inequality to legal reform has led a growing number of scholars to reconsider the explanatory virtues of Marxist legal thought. But what are those virtues? Some scholars hold that what makes Marxist legal thought special is its ability to explain the development of legal relationships in terms of the development of extra-legal relationships — specifically, the relations of production as they adapt to changes in the productive forces. Other scholars argue that this focus on the causal process by which extra-legal change (or stasis) drives legal change (or stasis) is too reductive. They contend that Marxist …

Private Equity, Public Utility, Kristen Van De Biezendos, Melissa Powers

Faculty Scholarship

The explosion of investment in artificial intelligence and cryptocurrencies has spurred a data center boom, with politicians jostling to attract companies to build data centers in their states. The potential financial windfall from these data centers has also attracted the attention of private equity firms, which are seeking to capitalize on the potential riches to be made in supplying these projects with electricity by buying regulated public electric utilities. These utilities are unusual in our capitalist system, in that they are subject to both state and federal regulation regarding their duties to serve the public and the amount they can …

Platform Privileges: A Framework For How Antitrust Law Should Police Digital Platforms’ Use Of Material Non-Public Information, Eric H. Siemens

Missouri Law Review

Where the Gilded Age Rockefeller oil monopoly once spurred antitrust reforms in the United States, the tech giants of Silicon Valley have ignited a similar frenzy for reform in legislators and populist scholars today. The unprecedented and rapid growth of digital platforms such as Google, Apple, Facebook, and Amazon has forced policymakers to confront the question of whether traditional antitrust law is sufficient to deal with the new-age giants. This has spurred calls on both sides of the political aisle for increased antitrust enforcement, leading Missouri Senator Josh Hawley to go as far as to argue that “[t]he Big Tech …

House Of Cards: An Examination Of Missouri’S Inconsistent Tax Assessment Regime And The Questionable Role Of The Court As Arbiter, Isabel Fenoglio

Missouri Law Review

“Taxes are what we pay for civilized society.” No one has offered a simpler rationale for the American tax system than the former Supreme Court Justice Oliver Wendell Holmes, Jr. Despite their inevitability, taxes remain universally dreaded and misunderstood by Americans, but none more so than property taxes. Without property taxes, life as everyday Americans understand it would cease to exist. From streets to schools, from libraries to fire departments, the budgets of indispensable public services, which enable communities to flourish, would collapse.

Pickering And Choosing: The Positive Outcome Of An Eighth Circuit Ruling Among The Chaotic World Of Government Employee Free Speech, Luke M. Severt

Missouri Law Review

Public employees do not shed their constitutional rights to freedom of speech or expression at the workplace gate. Nor do they shed them when they log on to their computer to send an email to their co-workers, superiors, or similar fellow government employees. In Mayfield v. Missouri House of Representatives, the Eighth Circuit undertook a multistep analysis to determine whether the defendant, as a public employer, violated the constitutional rights of its longtime employee, Tad Mayfield, when it terminated him only three days after he sent an email to state legislature leaders asking them to implement a mask mandate to …