Law Commons^™

A Cleaner, Crispr Constitution: Germline Editing And Fundamental Rights, Andrew Cunningham

William & Mary Bill of Rights Journal

No abstract provided.

Antitrust And The Politics Of State Action, Thomas B. Nachbar

William & Mary Law Review

In North Carolina State Board of Dental Examiners, the Court refused to exempt the board from the second element of Parker immunity—active supervision by the state—because the Board was made up largely of “active market participants.” This Article argues that the “active market participant” rule laid out in North Carolina State Board, while intuitively appealing, ignores important political values represented by antitrust law, values most evident in the context of state action immunity. By focusing on the potential market harm from self-interested regulators, the Court ignored a series of political harms inherent in the structure of the North …

The Present New Antitrust Era, Barak Orbach

William & Mary Law Review

Antitrust scholars frequently refer to an “ideological pendulum” to describe the rise and fall of trends in the evolution of antitrust law. This pendulum arguably swings between fairness and laissez-faire visions, while a technocracy vision moderates its motion. Mapping key phases in the evolution of antitrust law, I argue that a new antitrust era with distinctive characteristics has been forming in recent years.

The present new antitrust era is a product of growing tensions and contradictions among policy prescriptions. After several decades in which antitrust was a specialized field that drew little public attention, in the aftermath of the Great …

Yielding To The Necessities Of A Great Public Industry: Denial And Concealment Of The Harmful Health Effects Of Coal Mining, Caitlyn Greene, Patrick Charles Mcginley

William & Mary Environmental Law and Policy Review

In the mid-nineteenth century, coal mined in Central Appalachia began to flow into industrial markets. Those mines and the coal they produced provided jobs, put food on family tables in coalfield households, and even provided housing for hundreds of thousands of coal miners and their families. The bounty from America’s expanding coalfields fueled the Industrial Revolution and powered the nation’s steel mills, factories,steamboats, and railroads. It powered America’s defense through two World Wars and later military conflicts. Coal-fired power plants generated more than half of the electricity used in the United States in the latter quarter of the twentieth century. …

Snapshot Of Trade Secret Developments, Elizabeth A. Rowe

William & Mary Law Review Online

As we enter the second year of the DTSA, this Article presents a snapshot of developments to assess whether there appears to be any significant doctrinal changes afoot in trade secret litigation— including civil and/or criminal—during the past year. Professors David Levine and Christopher Seaman provided some empirical data and quantitative analysis of the case filings during the first year of litigation under the DTSA (from May 2016 to May 2017). This Article complements their excellent work by taking a qualitative look at some of the substantive rulings from the following year. My assessment based on this limited sampling is …

United States Antiterror Law Is Missing The Mark: Changing The Material Support Statute To Hit The Target, Tessa Beryl Tilton

William & Mary Law Review

No abstract provided.

The Misuse Of Product Misuse: Victim Blaming At Its Worst, Robert A. Adler, Andrew F. Popper

William & Mary Business Law Review

This Paper addresses the legal consequences that surface when a consumer uses a product in a manner not specifically intended by that product’s designer or manufacturer. If a product is used in a reasonably foreseeable manner, the fact that the use is at odds with a manufacturer’s intention should not be a basis to deny tort liability or limit the regulatory options of the Consumer Product Safety Commission. If a product proves to be unsafe, defective, dangerous, or otherwise hazardous to users and consumers, use patterns should not be the primary determinant in assessing regulatory and common law sanctions or …

The Failed Promise Of Mental Health Parity In Virginia: A Missing Key In Mental Healthcare Access, Zachary Woerner

William & Mary Business Law Review

For those who suffer from the most serious mental illnesses, access to mental healthcare is critically important, but often frustrated by a Byzantine insurance system. The goal of this Note is to sift through the various mental health insurance parity laws, both nationally and statewide, and determine where this system breaks down. The Note will argue that lack of enforcement of parity laws plays a critical role in much of the dysfunction in the marketplace.

Legislation in Virginia and elsewhere is not always deficient on its face. Instead, laws critically lack regulators willing or able to implement them. This creates …

Enforcing Principled Constitutional Limits On Federal Power: A Neo-Federalist Refinement Of Justice Cardozo's Jurisprudence, Robert J. Pushaw Jr.

William & Mary Law Review

Since the New Deal of the mid-1930s, Congress has asserted virtually absolute power to (1) “regulate Commerce ... among the States,” (2) tax and spend for the “general Welfare,” and (3) delegate “legislative Power[ ]” to the executive branch. From 1937 until 1994, the Supreme Court rejected every claim that such statutes had exceeded Congress’s Article I authority and usurped the states’ reserved powers under the Tenth Amendment. Over the past quarter century, conservative Justices have tried, and failed, to develop principled constitutional limits on the federal government while keeping the modern administrative and social welfare state largely intact.

The …

The Value Of Insider Control, Benjamin Means

William & Mary Law Review

According to conventional wisdom, insider control of businesses is detrimental to the interests of noncontrolling investors. Family-run businesses, in particular, are seen as nepotistic and inefficient. Yet, commentators have overestimated the dangers of insider control and overlooked its potential benefits for all stakeholders. Controlling owners have a personal stake that gives them reason to identify with their business and to adopt responsible business practices capable of creating lasting value. A stewardship model of insider control helps explain the continuing vitality of family businesses as well as the success of recent public offerings by Facebook, Google, and Snapchat involving low-vote or …

Interpreting Organizational "Contracts" And The Private Ordering Of Public Company Governance, Megan Wischmeier Shaner

William & Mary Law Review

Corporate law is undergoing an explosion of governance by private ordering. With increasing frequency and creativity, the charter and bylaws of public corporations are being used as tools for restructuring key aspects of corporate governance. The current focus of parties, courts, and scholars has been on the facial validity of these efforts. In light of courts’ willingness to uphold corporate governance contracting, legal battles will morph from validity challenges to interpretation disputes. Yet interpretation principles are a topic to which corporate scholars have devoted limited attention. With interpretation poised to take on an influential role in shaping corporate law and …

Removal Without Approval? Corporate Litigative Authority To Consent To Federal Removal Where Adverse Parties Are Co-Equal Shareholder Co-Directors, James M. Mcclure

William & Mary Business Law Review

The Case of Swart v. Pawar involved a novel question of law: can a president of a corporation claim authority on behalf of that corporation to consent to federal removal in a suit against a co-equal shareholder co-director even though that president lacks board approval or explicit authority from the business’s bylaws or charter? To address this question, the parties in Swart analogized removal to suit initiation and defense. Since the federal courts hearing the case did not assess the validity of these analogical arguments or a president’s removal authority generally, this Note evaluates the analogies as well as several …

Evaluating The Costs And Benefits Of A Smart Contract Blockchain Framework For Credit Default Swaps, Ryan Clements

William & Mary Business Law Review

Despite wide speculation about its use-value, there are very few large-scale Blockchain implementations, particularly in sophisticated financial applications and mature markets. The extent of Blockchain’s disruptive potential in these domains is uncertain. This Article considers Blockchain’s use-value for credit default swap contract execution, fulfillment, and post-trade processing by using, as an assessment base, a series of derivative industry whitepapers, academic and technological evaluative studies, and commentary relating to current market undertakings. In summary, when applied to credit default swaps, there are many barriers to implementation, as well as costs, fragmentation risks, technological deficiencies, and practical drawbacks. As a result, there …

Reforming The Charitable Contribution Tax Deduction: Accounting For Random Acts Of Charity, Janene R. Finley

William & Mary Business Law Review

Concern for the tax treatment of charitable contributions has increased as a result of the Tax Cuts and Jobs Act of 2017. Although the new law increased the limitation of deductible charitable contributions to 60 percent of adjusted gross income, the standard deduction was also increased. Increasing the standard deduction is expected to reduce the number of taxpayers who are able to itemize their deductions in the next tax year, which is expected to reduce charitable giving in the future. This Article discusses proposals to amend the Internal Revenue Code to promote charitable giving, including a non-itemizer deduction. In addition, …

Untangling The Web Of Consignment Law: The Journey From The Common Law & Article 2 To Revised Article 9, Willa Gibson

William & Mary Business Law Review

This Article examines and analyzes the law of consignments from the common law through Revised Article 9 with a goal towards identifying and analyzing the uncertainties and confusion that have persisted throughout the transition from the common law to the UCC. The law of consignments has abounded with uncertainty since its genesis under common law. In an attempt to clarify the persistent confusion and disarray surrounding the law, the UCC enacted section 2-326; but the statute was not a model of clarity, engendering increased uncertainty and confusion. Courts wrestled with how to interpret the provision to be consistent with the …

Taking Shelter Under The Fourth Amendment: The Constitutionality Of Policing Methods At State-Sponsored Natural Disaster Shelters, Kyle M. Wood

William & Mary Law Review

No abstract provided.

Natural Resource And Natural Law Part I: Prior Appropriation, Robert W. Adler

William & Mary Law Review

In recent years, there has been a resurgence of civil disobedience over public land policy in the West, sometimes characterized by armed confrontations between ranchers and federal officials. This trend reflects renewed assertions that applicable positive law violates the natural rights (sometimes of purportedly divine origin) of ranchers and other land users, particularly under the prior appropriation doctrine and grounded in Lockean theories of property. At the same time, Native Americans and environmental activists have also relied on civil disobedience to assert natural rights to a healthy environment based on public trust, fundamental human rights, and other principles. This Article …

Prosecuting Poverty, Criminalizing Care, Wendy A. Bach

William & Mary Law Review

In 2013, state legislators sitting at the heart of America’s opiate epidemic created the crime of fetal assault. Although they offered a fairly standard series of criminologic rationales to justify the legislation, they also posited that the creation of this crime was a precondition to secure treatment (or care) resources for women addicted to opiates. This extraordinary supposition—that criminalizing conduct creates a road to care—is an outgrowth of three interlinked socio-legal trends: the building of the carceral state, the criminalization of poverty, and the rapid growth, since the late 1980s, of a new generation of problem-solving courts. Framed in this …

From A Culture Of Food Waste To A Culture Of Food Security: A Comparison Of Food Waste Law And Policy In France And In The United States, Lindsay Bunting Eubanks

William & Mary Environmental Law and Policy Review

Fighting food waste fights hunger. It also cleans the planet. Currently, one third of all the food produced in the world—1.3 billion tons of edible food—goes to waste every year. Each ton of food wasted produces 3.8 tons of the world’s greenhouse gas emissions. In America, wasted food produces over 20% of methane gas emissions annually. Recovering all this wasted food could feed the food insecure, could clean the environment, and could even create new market opportunities within the food industry. If food industry businesses find ways to resell or recover the cost of what they currently throw away, this …

Property In The Anthropocene, E. Lees

William & Mary Environmental Law and Policy Review

Intergenerational justice, community interests, and environmental protection are all goals sought through the imposition of the duties of stewardship onto owners of land. But such duties, when imposed by law, require justification beyond the morality of maintaining and preserving land in a good condition for its present and future use. The potential for sanction imposed by the state means that stewardship duties, if they are to be justified, must be grounded in established principles of justified legal intervention. Of those, the most convincing is, and always has been, the harm principle: intervention is justified where a rule prevents one person …

Offshore Oil Leasing: Trump Administration’S Environmentally Dangerous Energy Policy, Carol J. Miller, Bonnie B. Persons

William & Mary Environmental Law and Policy Review

The Trump administration’s Executive orders on Promoting Energy Independence and Economic Growth (“Energy Independence Order”) and Implementing an America-First Offshore Energy Strategy (“Offshore Energy Order”) set the stage to open over 90% of the continental shelf to offshore oil drilling from 2019–2024. The Offshore Energy Order ignores the statutory requirements of the Outer Continental Shelf Lands Act (“OCSLA”) and the National Environmental Policy Act (“NEPA”) to balance energy exploration with safeguards for marine life and the environment. We analyze the lack of express authority in OCSLA for the President to rescind its protective designations, in comparison to other laws that …

From Exploitation To Equity: Building Native-Owned Renewable Energy Generation In Indian Country, Michael Maruca

William & Mary Environmental Law and Policy Review

Indian country contains abundant renewable energy resources, and harnessing such resources is vitally important for national climate change mitigation efforts. Shifting the electric grid towards wind and solar generation also carries local environmental and health benefits, increases energy independence, and serves national security interests. For willing tribes, renewable energy development offers an opportunity for job growth and income base expansion. But if that development is to serve all parties— tribes, states, and the nation—then the current policy framework must change. If it does not change, policymakers risk continuing the long history of exploitative resource development on reservations.

This Article examines …

Waste Size: The Skinny On The Environmental Costs Of The Fashion Industry, Elisha Teibel

William & Mary Environmental Law and Policy Review

The fashion industry is a web of complex global markets currently valued at $3 trillion that employs somewhere around sixty million people worldwide and is estimated to be one of the most labor-intensive industries on the planet. Over the past couple of decades, the industry has evolved into a highly fragmented sector with complicated supply chains and completely unstandardized production practices, which vary by factory and by country. The most significant facet of the fashion trade is the clothing and textile industry. The current total value of the clothing and textiles trade is estimated at $726 billion and a staggering …

Reinventing The Wheel: How Securitization Can Bolster The Market For Residential Energy Efficiency Loans, Joseph Gonyeau

William & Mary Environmental Law and Policy Review

Currently, one of society’s greatest goals is the reduction of greenhouse gases. This goal is generally accepted worldwide, as evidenced by the Paris Climate Agreement, the parties to which agreed to establish frameworks for adopting clean energy and reducing greenhouse gases. After the United States’ controversial decision to withdraw from the Paris Agreement, the federal government’s future in reducing greenhouse gases remains uncertain. Despite this setback, there are existing programs aimed at reducing greenhouse gases in the United States that the government should ensure succeed. One such program is the Warehouse for Energy Efficiency Loans (“WHEEL”).

WHEEL operates as a …

Fulfilling Climate Justice And Government Obligations To Alaska Native Villages: What Is The Government Role?, E. Barrett Ristroph

William & Mary Environmental Law and Policy Review

Climate change has had significant impacts on lands and communities across the United States, and particularly on Alaska Native Villages (“ANVs”). These Arctic and sub-Arctic indigenous communities, which are often remote and rural, depend on the land and water for their nutritional and cultural survival. My research draws from 153 interviews and conversations with ANV residents and those who make or influence policy for ANVs, along with local, state, and federal plans and laws relevant to ANVs and climate change. I consider the current and potential role of the federal and Alaskan governments in assisting ANVs and other communities to …