Law Commons^™

Direct-To-Consumer Advertising Of Prescription Drugs: Constitutionally Protected Speech Or Misinformation?, Matthew Griffin

William & Mary Law Review Online

This Note will argue that the United States can and should regulate direct-to-consumer (DTC) prescription drug advertisements on television more strictly—preferably by proscribing them altogether. In Part I, this Note will discuss the issues of soaring drug prices, disappointing health care outcomes, a glut of misleading drug advertisements affecting the doctor-patient relationship and personal health, and the problem with the current approach to prescription drug advertising. Part I will also discuss the misleading nature of DTC prescription drug advertisements and some examples of the harm they have caused. Additionally, Part I will propose a solution that focuses on limiting the …

Core And Periphery In Constitutional Law, R. George Wright

William & Mary Law Review Online

This paper embarks on an excursion through a number of the most vital constitutional rights cases, and other contexts as well, and seeks to show that the recurring judicial attempts to distinguish between core and peripheral areas within any given broad constitutional right are unnecessary and distracting. Intriguingly, the case for this conclusion varies significantly depending upon the nature of the general constitutional right in question. But the overall lesson is that courts should abandon their attempts to distinguish between core and peripheral areas of any given broad constitutional right. Courts should instead focus—directly or indirectly—on their best assessment of …

Supreme Court Cases That Persist: The Japanese American Cases, Louis Fisher

William & Mary Law Review Online

As with any human institution, the United States Supreme Court makes errors that, over a period of time, need correction. By focusing on the Japanese American cases, Hirabayashi (1943) and Korematsu (1944), the record is particularly remarkable. Over many decades the Supreme Court had abundant evidence that the two decisions were defective. It was not until June 26, 2018, in Trump v. Hawaii, that the Supreme Court announced that “Korematsu was gravely wrong the day it was decided.” If Korematsu was that deficient, why did it take the Court seventy-four years to admit it? Moreover, what about Hirabayashi? The decision …

The Dobbs Effect: Abortion Rights In The Rear-View Mirror And The Civil Rights Crisis That Lies Ahead, Terri Day, Danielle Weatherby

William & Mary Law Review Online

On June 24, 2022, seven weeks after the first-ever leak of a draft opinion, the United States Supreme Court circulated its decision in Dobbs v. Jackson Women’s Health Organization, defying stare decisis, overruling fifty years of precedent, and shattering the hopes of millions of Americans, who wished the leaked opinion was a fiction that would never come to be.

As the leaked draft forewarned, Roe v. Wadeis no longer the law of the land. No longer is a woman’s right to terminate a pregnancy—to exercise bodily autonomy and be free to control the trajectory of her life—protected as a fundamental …

The Morality Of Monopolization Law, Sandeep Vaheesan

William & Mary Law Review Online

Congress enacted the Sherman Act in 1890 and prohibited, among other practices, monopolization. To prove monopolization, the government and other plaintiffs must show that a firm both possessed monopoly power and engaged in bad conduct. In interpreting the spare language of the statute, the courts have identified many practices that constitute monopolization, including below-cost pricing, refusals to deal with rivals, and tying. In general, however, they have failed to explain why these practices are unfair and restricted by law. Judges have instead applied labels such as "anticompetitive" without articulating normative foundations for their decisions. A close examination of the case …

A Title Vii Dead End? Machine Learning And Employee Monitoring, Kayla Burris

William & Mary Law Review Online

This Note will argue that Title VII, as courts currently apply the law, does not adequately protect employees from algorithmic discrimination when companies use machine learning to monitor their employees' computers. Part I will provide an introduction to how employee monitoring tools work, how employers are using machine learning in their monitoring programs, and how these programs can discriminate. Because scholars have already done significant work in this area, this Note will not try to replicate this research but will provide an overview of how this discrimination can occur. Parts II and III will then analyze how an employee might …

What The Lawyer Well-Being Movement Could Learn From The Americans With Disabilities Act, Alex B. Long

William & Mary Law Review Online

Perhaps the central theme in all of the lawyer well-being literature is the profession's need to create a culture in which lawyers are proactive about taking care of themselves. This necessarily involves reducing some of the stigma associated with mental health issues so that lawyers feel comfortable to seek help when needed and to otherwise be mindful of their own well-being. The trick, obviously, is adopting an approach that meaningfully addresses the problems of mental health issues within the profession without further stigmatizing mental health issues more generally. This Article argues that despite its admirable efforts, the legal profession has …

Stephen Breyer, The Authority Of The Court And The Peril Of Politics, Harvard University Press, 2021, Louis Fisher

William & Mary Law Review Online

Louis Fisher reviewing Stephen Breyer's The Authority of the Court and the Peril of Politics (Harvard University Press, 2021).

Appendix: Cannabis, Consumers, And The Trademark Laundering Trap, Viva R. Moffat, Sam Kamin, Tim Maffett

William & Mary Law Review Online

Appendix to article in William & Mary Law Review vol. 63, no. 6 (2022), "Cannabis, Consumers, and the Trademark Laundering Trap" by Viva R. Moffat, Sam Kamin, and Tim Maffett.

Taking The Second Step: Section 924(C) Sentencing Disparities As An Extraordinary And Compelling Reason For Compassionate Release, Olivia Williams

William & Mary Law Review Online

This Note argues that courts are empowered to, and should, grant compassionate release based solely on the sentencing disparities created by the First Step Act -- specifically, the significant changes to § 924(c)'s sentencing scheme. [...] Part I of this Note provides background on the two relevant sections of the First Step Act: changes to the compassionate release process and changes to the § 924(c) sentencing scheme. Part II examines recent district court opinions addressing § 924(c) sentencing disparities as "extraordinary and compelling reasons" for reduced sentences. Part III argues that courts are empowered to grant compassionate release to inmates …

Winning The Battle, Winning The War, Malka Herman

William & Mary Law Review Online

This Article analyzes Derrick Bell's interest-convergence theory and its utility for lawyers when litigating for the rights of nondominant groups. The first part of this Article studies four different cases in which plaintiffs or amicus curiae chose arguments that highlighted the ways their interests converged with potential allies. The Article uses these cases as examples of four different ways that a lawyer can engage in interest-convergence litigation. The strategies examined in this Article rest on two axes: dominant/nondominant narrative convergence and natural/unnatural ally convergence. An analysis of the effects of each of these techniques makes it clear that dominant narrative …

Appendix: Board Gender Diversity: A Path To Achieving Substantive Equality In The United States, Kimberly A. Houser, Jamillah Bowman Williams

William & Mary Law Review Online

Appendix to article in William & Mary Law Review vol. 63, no. 2 (2021), "Board Gender Diversity: A Path to Achieving Substantive Equality in the United States" by Kimberly A. Houser and Jamillah Bowen Williams.

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 …

A Strange Land And A Peculiar Problem: Using Local Knowledge To Resolve Ambiguous Property Descriptions In Appalachia, William L. Spotswood

William & Mary Law Review Online

Conveying property in Appalachia can be somewhat like a box of chocolates: “You never know what you’re gonna get.” Carved by ancient rivers and winding streams, the seemingly never-ending “hollers” and hills of Appalachia can disorient even the best navigator. Couple the region’s rugged topography with an already ambiguous demarcation system, and properties once mapped by metes and bounds descriptions become impossible to re-create with any sort of certainty. Thus, though rooted in a desire for clarity, the combination of mountainous terrain and imperfect demarcation results in a property system riddled with ambiguity. Due to this inherent definitional problem in …

The Forum-Defendant Rule, The Mischief Rule, And Snap Removal, Howard M. Wasserman

William & Mary Law Review Online

Samuel Bray’s The Mischief Rule reconceptualizes and revitalizes that venerable canon of statutory interpretation. Bray’s new approach to the mischief rule offers a textual solution to an ongoing civil procedure puzzle—forum defendants and “snap removal.” The forum-defendant rule provides that a diversity case is not removable from state to federal court when a properly joined and served defendant is a citizen of the forum state. Snap removal occurs whena defendant removes before the forum defendant has been properly served, “snapping” the case into federal court. Three courts of appeals and a majority of district courts have endorsed this practice, concluding …

Erisa Defined Benefit Plans Are Not "Trust"Worthy, Stewart E. Sterk

William & Mary Law Review Online

What role does the common law of trusts play in policing investment decisions made in the context of a defined-benefit retirement plan governed by ERISA? That issue, among others, divided the Supreme Court this past term in Thole v. U.S. Bank N.A. The Court’s majority decided the case by holding that plan beneficiaries had no Article III standing to challenge allegedly self-interested investment decisions made by the plan’s sponsor and administrator. Because the Court grounded its decision in constitutional standing, Congress would be powerless to confer standing on plan beneficiaries without also amending the substantive rights accorded those beneficiaries. This …

Popular Sovereignty And The Doctrine Of Plenary State Legislative Power, Nina Neff

William & Mary Law Review Online

Unlike the federal legislature, state legislatures possess plenary power, except insofar as they are limited by state constitutions. Though state plenary power is rooted in the legal authority of popular sovereignty, the doctrine of plenary state legislative power dulls democratic power by eliminating a potential right to local self-governance and by inducing courts to underenforce constitutional limits on state legislatures. These trends do not square with our democratic intuitions or with our desire to have a sense of efficacy, energy, and power in our own ability to influence the laws of our communities. This Article suggests that the doctrine of …

Comments On Mcgahn "A Brief History Of Judicial Appointments From The Last 50 Years Through The Trump Administration", Russell Wheeler

William & Mary Law Review Online

Donald McGahn is a respected member of the Washington D.C. legal community, known especially for his expertise in election law. He served as White House counsel in the Trump administration until October 2018 and was a key player in the Trump administration’s judicial appointments process.His article is witty, sometimes revealing, but above all a description, as he sees it, of the decades-long deterioration of the process for Senate confirmation of federal judicial nominees, with some blame assigning. He also provides a few behind-the-scenes looks at Trump administration confirmation battles, and some recommendations for easing contentiousness in— or at least, speeding …

Second Guessing Double Jeopardy: The Stare Decisis Factors As Proxy Tools For Original Correctness, Justin W. Aimonetti

William & Mary Law Review Online

In Gamble v. United States, the Supreme Court reaffirmed the 170-year-old dual-sovereignty doctrine. That doctrine permits both the federal and state governments—as “separate sovereigns”—to each prosecute a defendant for the same offense. Justice Thomas concurred with the majority opinion in Gamble, but wrote separately to reject the traditional stare decisis formulation. In particular, the factors the majority used to evaluate stare decisis, in his view, amount to nothing more than marbles placed subjectively on either side of the stare decisis balancing scale. He would have preferred, instead, an inquiry into whether the precedent was demonstrably erroneous as an original matter, …

Black Flags Behind Bars: Doe V. Mattis And Why The 2001 Aumf Does Not Justify The Detention Of U.S.-Citizen Islamic State Fighters, John A. Gurtunca

William & Mary Law Review Online

This Note proposes that the current legal authority the United States relies on to detain U.S. citizens captured as enemy combatants—the 2001 AUMF—does not provide an adequate justification for the detention of Islamic State fighters who are U.S. citizens. This Note argues that despite a marriage of convenience, the Islamic State’s organizational and operational differences from al-Qaeda make it a factually distinct organization. Because the Islamic State and al-Qaeda are two different entities, the Islamic State falls outside the scope of the 2001 AUMF. Thus, the 2001 AUMF should not apply to the detention of U.S.-citizen Islamic State fighters because …

A Brief History Of Judicial Appointments From The Last 50 Years Through The Trump Administration, Donald F. Mcgahn Ii

William & Mary Law Review Online

This is the transcript of a lecture Mr. McGahn delivered at William & Mary Law School on November 19, 2018.

Jurisdiction And "Definitional Law", John F. Preis

William & Mary Law Review Online

Professor Scott Dodson and I agree that the law of federal jurisdiction needs improvement. We disagree, however, on Congress’s power to make that happen. In an article published in 2017, Dodson argued that “jurisdiction” has an “inherent identity” that “[n]either Congress nor the courts can change.” In an article published the following year, I critiqued this claim. There, I argued that Congress is not obliged to respect jurisdiction’s inherent identity (to the extent it might have one). Rather, Congress need only respect the identity of jurisdiction contained in the United States Constitution. Professor Dodson recently published a rejoinder to my …

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 …

Leveraging Regional Human Rights Mechanisms Against Universal Human Rights: The Oic Independent Permanent Human Rights Commission Study On Sexual Orientation, Robert C. Blitt

William & Mary Law Review Online

This article critically assesses a recent study on sexual orientation and gender identity (SOGI) prepared by the Organization for Islamic Cooperation’s (OIC) Independent Permanent Human Rights Commission (IPHRC). The first two parts review the establishment of the IPHRC and the norms governing regional human rights mechanisms (RHRMs). Following this, the article demonstrates that the methodology and conclusions evidenced in the IPHRC’s SOGI study diametrically oppose substantive international human rights law, and furthermore undermine the intended purpose of RHRMs within the human rights system. The article concludes by recommending that human rights advocates and others clearly and publicly call out these …

Appendix: Text And Precedent For Representational Adequacy Claims Under Fifty State Constitutions, Christopher S. Elmendorf

William & Mary Law Review Online

This Appendix supplements the Article, From Educational Adequacy to Representational Adequacy: A New Template for Legal Attacks on Partisan Gerrymanders in the print edition of the William & Mary Law Review.

Appendix: A Reasonable Bias Approach To Gerrymandering: Using Automated Plan Generation To Evaluate Redistricting Proposals, Bruce E. Cain, Wendy K. Tam Cho, Yan Y. Liu, Emily R. Zhang

William & Mary Law Review Online

Here, we present our findings, analogous to those on the efficiency gap in Part I.B of our Article published in the print edition of the William & Mary Law Review, on the other measures of partisan fairness.

Taking The States' Congressional Delegations Seriously: A Twelfth Amendment And First Amendment Approach To Identifying The Worst Gerrymanders, Jamin B. Raskin

William & Mary Law Review Online

Charming and irresistible as it is, the nineteenth-century slang term “gerrymander” cannot generate an equal protection standard to transform congressional and state legislative redistricting in the twenty-first century.

Defending Jurisdiction, Scott Dodson

William & Mary Law Review Online

In an article entitled Jurisdiction and Its Effects, I argued that jurisdiction has inherent descriptive meaning but mutable effects. In response, Professor John Preis challenges my framework on a number of grounds and offers his own presumption-based approach. In this reply, I defend my original framework and register my own skepticism of his alternative approach.

Corporate Directors In The United Kingdom, Stephen M. Bainbridge

William & Mary Law Review Online

In the United States, state corporation law uniformly provides that only natural persons may serve as directors of corporations. Corporations, limited liability companies, and other entities otherwise recognized in the law as legal persons are prohibited from so serving. In contrast, the United Kingdom allowed legal entities to serve as directors of a company. In 2015, however, legislation came into force adopting a general prohibition of these so-called corporate directors, albeit while contemplating some exemptions. This Article argues that there are legitimate reasons companies may wish to appoint corporate directors. It also argues that the transparency and accountability concerns that …

Appendix: Conjunction-Problem V. Non-Conjunction-Problem Jurisdictions, David S. Schwartz, Elliott Sober

William & Mary Law Review Online

This appendix presents the relevant data from our survey of jury instructions in support of the article in the print edition of the William & Mary Law Review. The Conjunction Problem and the Logic of Jury Findings (59 Wm. & Mary L. Rev. 619, 673-87 (2017))