Digital Commons Network^™

Blurred Lines: Disparate Impact And Disparate Treatment Challenges To Subjective Decisions-- The Case Of Reductions In Force, Allan King, Alexandra Hemenway

William & Mary Business Law Review

Subjective employment decisions may be challenged under disparate treatment (intentional discrimination) and/or disparate impact (the discriminatory consequences of a neutral policy) theories of discrimination. However, these theories and supporting evidence often are conflated when the criteria for selecting employees are ill-defined or unrecorded. In those instances, the process by which employees are selected merges with the selections themselves, these legal theories converge as well. This Article critically discusses how courts have struggled to distinguish these theories in cases alleging a discriminatory reduction in force. It suggests how these cases should be submitted to juries, to preserve the liability and remedies …

Independent Craft Breweries Struggle Under Distribution Laws That Create A Power Imbalance In Favor Of Wholesalers, Daniel Croxall

William & Mary Business Law Review

Independent craft breweries are facing historic challenges under the COVID-19 pandemic. To make matters worse, many states prohibit a brewery from terminating a distribution contract with a wholesaler absent statutorily defined “good cause,” which typically means fraud, bankruptcy, or other illegal conduct. In this context, lagging sales or poor distribution performance are not grounds for a brewery to terminate a distribution contract. This means that it is nearly impossible, legally or financially, for an independent craft brewery to terminate a distribution contract with an unsatisfactory wholesaler. In essence, states have statutorily tipped the balance of power in favor of distributors …

The All Events Test In An Era Of Self-Regulation, Glenn Walberg

William & Mary Business Law Review

Accrual-method taxpayers must use the all events tests to account for rights and liabilities under contracts for sales of goods and services. These longstanding tests evolved from transactions that involved relatively straightforward exchanges of goods or services for payments, and the tests currently reflect an expectation that a taxpayer will usually make an accrual when a seller’s performance fixes the contracting parties’ respective right to and liability for payment. Business practices have changed such that many sales now occur in relationships where contracting parties assume, monitor, and enforce process-related obligations, including adoptions of codes of conduct by members of global …

Understanding The Economic And Political Effects Of Trump's China Tariffs, Daniel C. K. Chow, Ian M. Sheldon

William & Mary Business Law Review

Although President Trump has persistently claimed that China is paying billions of dollars in tariffs imposed on Chinese imports to the United States, empirical evidence indicates that U.S. consumers are bearing the cost of the tariffs: $51 billion in increased prices and a net loss of $7.2 billion to the U.S. economy. The unilateral power-based approach to trade used by the Trump Administration has also resulted in unexpected economic and political costs in key Midwestern states that helped propel Trump to the U.S. presidency in 2016. These costs have led to reverses for the Trump Administration in the mid-term elections …

In Deciding Fulton V. Philadelphia, The Supreme Court Should Remember That Foster Care Is For The Children, James Dwyer

Popular Media

No abstract provided.

A "Directed Trust" Approach To Intergenerational Solidarity In American Environmental Law And Policy: A Modest Proposal, Lucia A. Silecchia

William & Mary Environmental Law and Policy Review

No abstract provided.

U.S. Property Law: A Revised View, Kamaile A.N. Turčan

William & Mary Environmental Law and Policy Review

No abstract provided.

Fine(Ing) Wine: Challenging Direct-Shipment Licensing Fees On Dormant Commerce Clause Grounds, Alexander R. Steiger

William & Mary Law Review

This Note advocates for a constitutional challenge to state direct-to-consumer licensing fees, arguing that the licensing fees impose an undue burden on interstate commerce. To this end, this Note will apply the Supreme Court’s dormant Commerce Clause jurisprudence to state DtC wine licensing fees. Under this framework, the Court has almost always invalidated state laws that discriminate against out-of-state interests absent a showing that the law is necessary to achieve a legitimate purpose other than economic protectionism. If the state law is not found to discriminate against out-of-state interests, the Court balances the law’s burdens on interstate commerce against its …

Jury Bias Resulting In Indefinite Commitment: Expanding Procedural Protections In Svp Civil Commitment Proceedings Under The Mathews Test, Alli M. Mentch

William & Mary Law Review

Twenty states, the District of Columbia, and the federal government have enacted Sexually Violent Predator (SVP) laws that permit the civil commitment of sex offenders. Under these laws, imprisoned sex offenders serving criminal sentences are transferred to treatment facilities and held indefinitely. As one individual describes civil commitment, “It’s worse than prison. In prison I wasn’t happy, but I was content because I knew I had a release date.” An estimated 5,400 individuals are currently civilly committed under these laws.

This Note argues that such laws do not adequately protect respondents’ due process rights. To that end, this Note proposes …

Political Fair Use, Cathay Y. N. Smith

William & Mary Law Review

No abstract provided.

A Comparative Examination Of Police Interrogation Of Criminal Suspects In Australia, Canada, England And Wales, New Zealand, And The United States, Carol A. Brook, Bruno Fiannaca, David Harvey, Paul Marcus, Renee Pomerance, Paul Roberts

William & Mary Bill of Rights Journal

The interrogation process is central to the investigation and resolution of criminal matters throughout the world. It is fundamental to a comprehensive understanding of comparative criminal procedure to study and appreciate the different approaches to the interrogation process in different nations. This Article developed through a series of conversations between six international criminal justice professionals— practicing attorneys, scholars, and judges—regarding the interrogation practices and rules in their respective countries. Providing a comparative look at this important area, this Article examines the applicable practices and procedures in the common law nations of Australia, Canada, England and Wales, New Zealand, and the …

A Scapegoat Theory Of Bivens, Katherine Mims Crocker

Faculty Publications

Some scapegoats are innocent. Some warrant blame, but not the amount they are made to bear. Either way, scapegoating can allow in-groups to sidestep social problems by casting blame onto out-groups instead of confronting such problems--and the in-groups' complicity in perpetuating them--directly.

This Essay suggests that it may be productive to view the Bivens regime's rise as countering various exercises in scapegoating and its retrenchment as constituting an exercise in scapegoating. The earlier cases can be seen as responding to social structures that have scapegoated racial, economic, and other groups through overaggressive policing, mass incarceration, and inequitable government conduct more …

Reconsidering Section 1983'S Nonabrogation Of Sovereign Immunity, Katherine Mims Crocker

Faculty Publications

Motivated by civil unrest and the police conduct that prompted it, Americans have embarked on a major reexamination of how constitutional enforcement works. One important component is 42 U.S.C. § 1983, which allows civil suits against any "person" who violates federal rights. The U.S. Supreme Court has long held that "person" excludes states because Section 1983 flunks a condition of crystal clarity.

This Article reconsiders that conclusion--in legalese, Section 1983's nonabrogation of sovereign immunity--along multiple dimensions. Beginning with a negative critique, this Article argues that because the Court invented the crystal-clarity standard so long after Section 1983's enactment, the caselaw …

Who And What Is A City "For"? Municipal Associational Standing Reexamined, Kaitlin Ainsworth Caruso

William & Mary Law Review Online

Cities nationwide increasingly engage in affirmative, plaintiff-side litigation to protect their residents. But despite this trend, standing remains a persistent challenge in municipal affirmative litigation—particularly in federal court, and particularly in impact litigation. I have previously proposed one way to give cities standing in federal court more in line with that of states, and with the role that cities play in their residents’ lives: extending to municipalities the doctrineof associational standing, which nonprofits and associations use to speak for their members in court. Recent works have both amplified and critiqued that initial proposal. With these additional considerations in hand, we …

Unequal Protection: Rethinking The Standards And Safeguards For Absentee Ballot Schemes, Kira M. Simon

William & Mary Bill of Rights Journal

No abstract provided.

Fitbit Data And The Fourth Amendment: Why The Collection Of Data From A Fitbit Constitutes A Search And Should Require A Warrant In Light Of Carpenter V. United States, Alxis Rodis

William & Mary Bill of Rights Journal

No abstract provided.

Deepfakes: A New Content Category For A Digital Age, Anna Pesetski

William & Mary Bill of Rights Journal

Technology has advanced rapidly in recent years, greatly benefitting society. One such benefit is people’s ability to have quick and easy access to information through news and social media. A recent concern, however, is that manipulated media, otherwise known as “deepfakes,” are being released and passed off as truth. These videos are crafted with technology that allows the creator to carefully change details of the video’s subject to make him appear to do or say things that he never did. Deepfakes are often depictions of political candidates or leaders and have the potential to influence voter choice, thereby altering the …

The Pure-Hearted Abrams Case, Andres Yoder

William & Mary Bill of Rights Journal

One hundred years ago, Justice Oliver Wendell Holmes changed his mind about the right to free speech and wound up splitting the history of free speech law into two. In his dissent in Abrams v. United States, he called for the end of the old order—in which courts often ignored or rejected free speech claims—and set the stage for the current order—in which the right to free speech is of central constitutional importance. However, a century on, scholars have been unable to identify a specific reason for Holmes’s Abrams transformation, and have instead pointed to more diffuse influences. By …

Judging History: How Judicial Discretion In Applying Originalist Methodology Affects The Outcome Of Post-Heller Second Amendment Cases, Mark Anthony Frassetto

William & Mary Bill of Rights Journal

This Article aims to assess how the federal appellate courts have applied the originalist methodology in Second Amendment cases in the decade since Heller. It reviews how courts’ varying approaches to historical analysis—specifically, how courts have addressed what historical period to look to, how prevalent a historical tradition must be, and whether to address history at a high or low level of generality—can drastically affect the outcome of cases. As Justice Scalia acknowledged in McDonald, “Historical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to …

Unduly Burdening Abortion Jurisprudence, Mark Strasser

William & Mary Bill of Rights Journal

The undue burden standard is the current test to determine whether abortion regulations pass constitutional muster. But the function, meaning, and application of that test have varied over time, which undercuts the test’s usefulness and the ability of legislatures to know which regulations pass constitutional muster. Even more confusing, the Court has refused to apply the test in light of its express terms, which cannot fail to yield surprising conclusions and undercut confidence in the Court. The Court must not only clarify what the test means and how it is to be used, but must also formulate that test so …

Who Will Save The Redheads? Towards An Anti-Bully Theory Of Judicial Review And Protection Of Democracy, Yaniv Roznai

William & Mary Bill of Rights Journal

Democracy is in crisis throughout the world. And courts play a key role within this process as a main target of populist leaders and in light of their ability to hinder administrative, legal, and constitutional changes. Focusing on the ability of courts to block constitutional changes, this Article analyzes the main tensions situated at the heart of democratic erosion processes around the world: the conflict between substantive and formal notions of democracy; a conflict between believers and nonbelievers that courts can save democracy; and the tension between strategic and legal considerations courts consider when they face pressure from political branches. …

The Protection Of Free Choice And The Right To Passivity: Applying The Privilege Against Self-Incrimination To Physical Examinations And Documents' Submission, Rinat Kitai-Sangero

William & Mary Bill of Rights Journal

This Article addresses the question of whether the privilege against selfincrimination should cover physical examinations as well as the obligation to submit documents. This question requires a serious examination of the justifications underlying the privilege against self-incrimination and is of particular relevance in the current age of technological progress that expands the powers assigned to law enforcement agencies to access knowledge and thoughts stored in individuals’ minds. After addressing the comparative law regarding the applicability of the privilege against selfincrimination to physical examinations and to the obligation to submit documents and discussing key justifications for the privilege against self-incrimination, dividing …

Table Of Contents (V. 29, No. 2)

William & Mary Bill of Rights Journal

No abstract provided.

Supreme Court Fact-Finding And The Distortion Of American Democracy: Hearing Before The Subcommittee On Federal Courts, Oversight, Agency Action And Federal Rights Of The Committee On The Judiciary, Senate, One Hundred Seventeenth Congress, First Session, Allison Orr Larsen

Congressional Testimony

No abstract provided.

Rehabilitating Charge Bargaining, Nancy Amoury Combs

Faculty Publications

Nobody likes plea bargaining. Scholars worldwide have excoriated the practice, calling it coercive and unjust, among other pejorative adjectives. Despite its unpopularity, plea bargaining constitutes a central component of the American criminal justice system, and the United States has exported the practice to a host of countries worldwide. Indeed, plea bargaining has even appeared at international criminal tribunals, created to prosecute genocide and crimes against humanity--the gravest crimes known to humankind. Although all forms of plea bargaining are unpopular, commentators reserve their harshest criticism for charge bargaining because charge bargaining is said to distort the factual basis of the defendant's …

Paternalism, Tolerance, And Acceptance: Modeling The Evolution Of Equal Protection In The Constitutional Canon, John Tehranian

William & Mary Law Review

This Article proposes a legal taxonomy through which we can model changes in interpretations and applications of antidiscrimination principles to best understand the evolution of equal protection doctrine. The goal for doing so is two-fold. First, through a careful exegesis of a wide range of equal protection cases from the past hundred and fifty years, the analysis provides a positive theory to chart how respect for minority rights can progress within a given doctrinal space. Second, the analysis provides an unabashedly normative assessment of how closely a given legal regime comes to accepting and celebrating the inherent dignitary interests of …

Fiscal Waivers And State "Innovation" In Health Care, Matthew B. Lawrence

William & Mary Law Review

This Article describes how the Department of Health and Human Services (HHS) has used fiscal waiver authorities—delegated power to alter federal payments to states under Medicaid and the Affordable Care Act (ACA)—to influence state health policy choices. It highlights how the agency uses its fiscal waiver authorities to shape which reforms states choose to pursue, in some cases inspiring genuine state innovation and in others encouraging states to adopt reforms favored by HHS or discouraging states from adopting disfavored reforms. Moreover, while HHS has sometimes influenced state policy making in ways that further the substantive goals of the ACA and …

Greening The Trust: Enforcing Pennsylvania's Environmental Rights And Duties To Combat Climate Change, Julia E. Sappey

William & Mary Law Review

Over the last century, humans have warmed the planet by approximately 1.0°C. Pennsylvania’s average temperature has risen 1.8°F in the last hundred years, and climate scientists predict it will warm an additional 5.4°F by 2050. These rising temperatures create feedback loops, leading to warming that will eventually become irreversible. Warmer temperatures have already led to melting ice caps, rising sea levels, dangerous weather patterns, and food shortages. Human-produced greenhouse gases (GHG) are the largest contributing factor to this warming. The scientific community largely agrees that if humans do not reach carbon neutrality by 2050, damage to the climate will be …

Table Of Contents (V. 62, No. 5)

William & Mary Law Review

No abstract provided.

Siting Wind Energy Projects In Virginia: Recommendations For Addressing National Security Concerns Through State Permitting Processes, Erika Bosack, Dana Mirsky, Anna Nicholson, Christopher Sanborn

Virginia Coastal Policy Center

This white paper first explains the federal and state wind energy siting approval processes and the military’s current involvement in those processes. In particular, the paper focuses on permit-issuing agencies as opposed to policy-making agencies. Parts I and II outline the federal and state permitting process, respectively. In Part III, the paper discusses the military’s concerns regarding wind energy siting. Part IV moves to the current status of Virginia’s onshore and offshore wind industries. Part V analyzes two case studies: Block Island Wind Farm in Rhode Island and the Pantego Wind Energy Facility in North Carolina. Finally, Part VI synthesizes …