Digital Commons Network^™

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 …

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 …

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 …

Abuse Of Contract: A Proposal For A New Cause Of Action, Miriam A. Cherry

William & Mary Law Review

With the growth of online commerce and the platform economy, many companies are including provisions in their online terms and conditions that extend far beyond what reasonable consumers would expect. Some terms and conditions purport to bind customers to separate contracts in future transactions that have little to do with the first contract. Other boilerplate purports to cover family members of the customer who created an account. Some retailers have argued that people shopping in their brick-and-mortar stores are subject to terms and conditions because those shoppers had at some point previously created an online account. For example, Disney argued …

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 …

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 …

Mandatory Cooperation Under International Law, Evan J. Criddle, Evan Fox-Decent

Faculty Publications

Humanity in the twenty-first century faces serious global challenges and crises, including pandemics, nuclear proliferation, violent extremism, refugee migration, and climate change. None of these calamities can be averted without robust international cooperation. Yet, national leaders often assume that because their states are sovereign under international law, they are free to opt in or out of international cooperation as they see fit. This book challenges conventional wisdom by showing that international law requires states to cooperate with one another to address matters of international concern – even in the absence of treaty-based obligations. Within the past several decades, requirements to …

The Deepfake Dilemma: Fake Images, Real Victims, And The Legal Void In Addressing Non-Consensual Deepfake Pornography, Elizabeth A. Safaryn

William & Mary Journal of Race, Gender, and Social Justice

This Note evaluates the various legal remedies available to victims of non-consensual deepfake pornography. As deepfakes are a relatively new but rapidly advancing technology, it is difficult for the law to keep up with the mass creation and distribution of AI-generated images on the Internet. With the competing interest of constitutionally protected speech, current deepfake laws fail to address non-consensual intimate image sharing (NCII) explicitly and lack the necessary deterrent effect to curb their proliferation. With an initial background on deepfakes and machine learning, this Note then explores the strained relationship between the First Amendment and the available civil remedies …

The New Transgender Tipping Point: Trumpism, Medical Necessity & Gender-Affirming Care, Molly J. Nunn

William & Mary Journal of Race, Gender, and Social Justice

Following the rise and eventual triumph of Trumpism 2024, President Donald J. Trump and his administration have sought to discredit the internationally recognized standards of effective health care practice for gender-affirming care. Now, ten years after Time Magazine published “The Transgender Tipping Point,” the political discourse of transgender identity is tipping again. Under the second Trump Administration, transgender identity sits at the edge of an abyss. Trumpism seeks to eradicate or significantly limit access to gender-affirming care through executive actions and the judiciary, despite the plethora of medical associations stating that that care is medically necessary. Public policies that widely …

Dad On Duty: The Potential Of Paid Parental Leave Laws, Laura E. Bates

William & Mary Journal of Race, Gender, and Social Justice

The United States is the only industrialized country in the world that does not guarantee its citizens paid parental leave. While the Family and Medical Leave Act provides some employees up to twelve weeks of unpaid leave, its limitations leave most American parents without adequate support. In the absence of a national paid parental leave system, states are stepping in, enacting laws that provide fully or partially paid parental leave. Private employers are also offering paid parental leave in increasing numbers. Despite these efforts, only 27 percent of private-sector American employees have access to paid parental leave.

Men taking paternity …

The Path To Abundance: The Legal, Policy, And Political Challenges Of An Abundance Agenda, Eric Biber

William & Mary Environmental Law and Policy Review

A range of public intellectuals and academics have argued that America is increasingly unable to advance major projects, such as housing, renewable energy, and innovation, because of legal obstacles such as judicial review and regulatory requirements. In response, the abundance movement has called for legal reforms to speed up project development. The abundance movement has identified real problems that require solutions. Unfortunately, the movement also faces political and legal challenges as well. Reform will require difficult tradeoffs, which will be politically difficult. Abundance reforms will likely not be politically popular, and will be particularly hard to implement in a polarized …

From Property To Personhood: Reimagining Nature's Place In The Legal Order, Lan Cao

William & Mary Environmental Law and Policy Review

This Article explores the emerging rights of nature movement as a radical departure from traditional environmental approaches, grounded in a “new consciousness” that challenges the anthropocentric world-view. The Article sets the stage for a defense of the rights of nature by providing a comprehensive critique of the current model of economic development, primarily focused on GDP, which has proven detrimental to environmental health by neglecting broader values; the Article also highlights alternative measures adopted by entities like the UN and EU that incorporate factors like happiness. Rights of nature builds upon that foundation for a broader understanding of development and …

Environmental Insurance And Esg: A Mismatch Or An Unlikely Pair?, Mycah Kindle

William & Mary Environmental Law and Policy Review

Environmental insurance is something that is becoming increasingly important in the corporate sphere. Similarly, there has been an uproar in the Environmental, Social, and Governance (ESG) movement. ESG ratings are becoming the norm in corporate America as a way to quickly assess a corporation through using a variety of factors. This Note will argue that a company’s ESG rating should be a main consideration when insurers are underwriting their environmental insurance policies. This Note will argue that by linking a company’s ESG ratings with their environmental insurance, it may lead to more sustainable practices and accountability from corporate America.

Part …

The Judicial Voice On The Courts Of Appeals, Allison Orr Larsen, Neal Devins

Faculty Publications

The judicial voice on an appellate court typically speaks in the collective, so when a judge chooses to go solo—either in a dissent or a concurrence—that act deserves a close look. Separate opinions on the U.S. Supreme Court are common because the Justices have strong incentives to articulate a distinctive personal jurisprudence. But lower court judges have always been more reluctant to write separately, and for good reason. The institutional design and longstanding practices of the U.S. courts of appeals are very different from the Supreme Court: Lower appellate court judges are bound by precedent in a different way, rarely …

Developer Perspectives On Licensing And Copyright Issues Arising From Generative Ai For Software Development, Trevor Stalnaker, Nathan Wintersgill, Oscar Chaparro, Laura A. Heymann, Massimiliano Di Penta, Daniel M. German, Denys Poshyvanyk

Faculty Publications

Despite the utility that Generative AI (GenAI) tools provide for tasks such as writing code, the use of these tools raises important legal questions and potential risks, particularly those associated with copyright law. As lawmakers and regulators respond to these questions, the views of users can offer relevant perspectives. In this article, we provide: (1) a survey of 574 developers on the licensing and copyright aspects of GenAI for coding, as well as follow-up interviews; (2) a snapshot of developers’ views at a time when GenAI and perceptions of it were rapidly evolving; and (3) an analysis of developers’ perspectives, …

Firearms And Fora: Constructing Public Carry Doctrine, Timothy Zick

Faculty Publications

Where can a person lawfully carry firearms in public? Under what conditions can they do so? Now that the Supreme Court has formally recognized a Second Amendment right to public carry, these are among the most important unresolved questions regarding the right to bear arms. The Second Amendment’s public carry doctrine is in its infancy. How the doctrine develops will have a profound impact on the exercise of Second Amendment rights in public places and on the public square. Integrating a new constitutional right into the public square is not a novel problem. After the Supreme Court recognized First Amendment …

The Specter Of Jury Nullification, Anna Offit

Faculty Publications

Attention to the trial of Luigi Mangione has renewed debate about nullification—the jury’s inviolate power to acquit a defendant contrary to the evidence presented. Jury nullification proponents hold that it is a mechanism of last resort for refusing to apply laws that conflict with the public conscience. Opponents, by contrast, argue that nullification undermines the law by diminishing its legitimacy. To prosecutors and defense attorneys, however, these arguments are immaterial: Jury nullification is part of the institutional landscape of the contemporary jury trial and thus must be treated as a potentiality—a feature of the agnostic, strategic, and ethical terrain of …

The Executive's Takeover Of Independent Agencies: How Institutional Design Gave Way To Political Will, Neal Devins

Faculty Publications

The anticipated demise of the independent agency is a saga that implicates Congress as much as it does the President or the Supreme Court. By capitulating to presidential initiatives and failing to defend their institutional prerogatives, Congress has facilitated presidential control of the administrative state. Indeed, irrespective of whether the Court formally repudiates Humphrey’s Executor, Congress has largely acquiesced to a regime whereby presidents essentially control independent agencies. By highlighting the competing incentives of Congress and the White House, this Essay explains the rise of presidential unilateralism vis-à-vis independent agencies. This Essay also casts light on a critically important but …

The Library Of Congress At A Crossroads: Executive Overreach And The Future Of Public Knowledge, Leslie A. Street, Amanda M. Runyon

Library Staff Publications

This Article argues that the removal of the Librarian of Congress and the Register of Copyrights exposed a dual vulnerability: a constitutional breach of the separation of powers and a cultural threat to the nation’s knowledge infrastructure. The Library’s structural ambiguity—its simultaneous identity as a legislative library, national library, and copyright agency—has left it vulnerable to executive overreach. By asserting control over an institution designed to serve Congress and safeguard America’s intellectual heritage, the President destabilized a statutory framework that has endured for over two centuries. To protect both constitutional integrity and the Library’s role as custodian of national memory, …

To The Hague And Beyond: The Shifting Terrain Of International Criminal Justice, Leila Nadya Sadat, Valerie Oosterveld, Sharon Weil, Nancy Combs, David Crane

Faculty Publications

Panel of international criminal law experts speak about the areas in which they work.

The High Cost Of Law School Casebooks, Jeffrey Bellin

William & Mary Bill of Rights Journal

Commentators have forecasted the demise of high-priced commercial casebooks for two decades. Yet little has changed. This Symposium Essay explores the headwinds facing free and low-cost books in the law school casebook market. It suggests that the biggest problem is “casebook selection inertia.” Given the centrality of the assigned casebook to a typical law school course, professors face strong incentives to make a safe choice from among the leading casebooks—typically those published by the handful of established academic presses who set the highest prices. These choices stick, not only determining the book that will be used for that professor’s future …

Expanding The Foreign National Prohibition To Combat Russian Interference In U.S. Elections, Hailey Arnett

William & Mary Bill of Rights Journal

In 2016, the Russian government purchased political advertisements from U.S. social media companies like Facebook to sway the U.S. presidential election. These purchases violated the foreign national prohibition (“the Prohibition”), which Congress codified as part of the Federal Election Campaign Act Amendments of 1974 (FECA). This Note explains why Congress should expand the Prohibition to capture the recipients of independent expenditures that violate the Prohibition and fine people who run online platforms that receive independent expenditures or contributions made by foreign nationals in violation of the Prohibition.

Part I describes current U.S. case law on domestic and foreign campaign finance …

Foreword: Casebooks And The Choices That Shape Constitutional Law, Sanford Levinson, Caroline Olsen

William & Mary Bill of Rights Journal

This collection of essays is the product of a conversation between the two co-authors of this Introduction. It occurred toward the conclusion of a very illuminating Symposium at William & Mary Law School in March 2024 on Jack Balkin’s latest book, Memory and Authority, on the role that memory plays in our notions of law. Caroline was the incoming Editor-in-Chief of the William & Mary Bill of Rights Journal, which had sponsored the Symposium. Sandy was a participant in the Symposium. Jack is a very close friend with whom he has coauthored at least two dozen articles and …

Casebooks, Canons, And Constitutional Memory, Jack M. Balkin, Sanford Levinson

William & Mary Bill of Rights Journal

Casebooks on constitutional law take a lot of time and effort to prepare. What is the point of bothering to edit one? There are several possible reasons. First, you might want to make money from sales. For the vast majority of law professors, the financial return to the hours spent organizing and editing cases is simply not worth it. Second, you might be the sort of person who just likes to do things by yourself. If you are going through the bother of preparing your own materials, then why not publish them and possibly influence others as well? Most law …

Table Of Contents (V. 34, No. 2)

William & Mary Bill of Rights Journal

No abstract provided.

What Is The Measure Of Success For A Constitutional Law Casebook?, Erwin Chemerinsky

William & Mary Bill of Rights Journal

In this Essay, I want to address four topics: how I came to write my constitutional law casebook; my goals for my Constitutional Law class and how the book facilitates achieving them; the challenges in writing a constitutional law casebook; and thoughts about the future of constitutional law casebooks.

There are many different constitutional law casebooks on the market because there are countless different ways of teaching the subject. There is no right way or best way to teach this or any other subject in the law school curriculum. I am describing my approach to teaching a subject that is …

Overruled Cases As A Tool For Inculcating Legal Realism, Michael C. Dorf

William & Mary Bill of Rights Journal

The changes wrought by Dobbs and Students for Fair Admissions v. President and Fellows of Harvard College (SFFA) are hardly the only examples of momentous changes to constitutional law in the last few years. Doctrines involving the religion clauses of the First Amendment, the Second Amendment, the scope of the president’s removal power, and much more have been changing rapidly since Amy Coney Barrett replaced Ruth Bader Ginsburg in the fall of 2020, thereby solidifying a conservative supermajority on the Supreme Court. I imagine that the strengthening of the major questions doctrine, the overruling of Chevron deference to federal administrative …

Teaching Firearms Law: One Big Opportunity And Three Pedagogical Challenges, Joseph Blocher, Jacob D. Charles, Darrell A.H. Miller

William & Mary Bill of Rights Journal

The U.S. Supreme Court’s groundbreaking 2008 decision in District of Columbia v. Heller ushered in a new era for the Second Amendment: one in which the right to keep and bear arms, long dormant as a matter of practical impact and even “embarrassing” as a matter of legal scholarship, vaulted into the front ranks of constitutional law. The Court itself has only revisited the Amendment a few times since then—albeit once by revolutionizing the doctrine. Meanwhile, lower courts have issued thousands of decisions giving shape to the right, while scholars have generated work that is increasingly deep, diverse, and challenging. …