Law Commons^™

The Bergdahl Block: How The Military Limits Public Access To Preliminary Hearings And What We Can Do About It, Eric R. Carpenter

William & Mary Bill of Rights Journal

Sergeant Bowe Bergdahl and Private First Class Bradley (now Chelsea) Manning have something in common. Military officials unlawfully closed all or portions of their preliminary hearings to the public. When doing so, military officials exploited two unusual features of the military justice system, thereby denying the accused and the media of their respective Sixth Amendment and First Amendment rights to a public hearing.

The first feature is that the military justice system does not include a standing trial-level court. If there is a problem at the preliminary hearing, the accused and media have nowhere to go for help. The accused …

Fifty Shades And Fifty States: Is Bdsm A Fundamental Right? A Test For Sexual Privacy, Elizabeth Mincer

William & Mary Bill of Rights Journal

No abstract provided.

Quitting Cold Turkey?: Federal Preemption Doctrine And State Bans On Fda-Approved Drugs, Thomas A. Costello

William & Mary Bill of Rights Journal

No abstract provided.

Being Seen Like A State: How Americans (And Britons) Built The Constitutional Infrastructure Of A Developing Nation, Daniel J. Hulsebosch

William & Mary Law Review

This Article develops the argument that the Federal Constitution of 1787 was conceptualized, drafted, and put into operation not only for American citizens but also for foreign audiences. In a world without supranational governing institutions, a constitution—at least, the Federal Constitution—might serve to promote peaceable international relations based on reciprocal trade and open credit. That at least was the Enlightenment-inflected hope.

Did it work? If early Americans engaged in constitution-making in large part to demonstrate their capacity for self-government, selfdiscipline, and commercial openness to foreign audiences, did anyone notice? Or was it all, regardless of diplomatic purposes and consistent with …

The Early Eight And The Future Of Consumer Legal Activism To Fight Modern-Day Slavery In Corporate Supply Chains, Andrew G. Barna

William & Mary Law Review

No abstract provided.

Campbell-Ewald Co. V. Gomez: Diminishing The Derivative Sovereign Immunity Doctrine And The Social Costs Of Increasing Liability To Government Contractors, W. Logan Lewis

William & Mary Law Review

No abstract provided.

The Origins (And Fragility) Of Judicial Independence, Tara Leigh Grove

Faculty Publications

The federal judiciary today takes certain things for granted. Political actors will not attempt to remove Article III judges outside the impeachment process; they will not obstruct federal court orders; and they will not tinker with the Supreme Court’s size in order to pack it with like-minded Justices. And yet a closer look reveals that these “self-evident truths” of judicial independence are neither self-evident nor necessary implications of our constitutional text, structure, and history. This Article demonstrates that many government officials once viewed these court-curbing measures as not only constitutionally permissible but also desirable (and politically viable) methods of “checking” …

Brief Of Scholars Of Mormon History & Law As Amici Curiae In Support Of Neither Party, Anna-Rose Mathieson, Ben Feuer, Nathan B. Oman

Briefs

No abstract provided.

Keeping The Clean Water Act Cooperatively Federal—Or, Why The Clean Water Act Does Not Directly Regulate Groundwater Pollution, Damien Schiff

William & Mary Environmental Law and Policy Review

No abstract provided.

Bike Lanes, Not Cars: Mobility And The Legal Fight For Future Los Angeles, Ernesto Hernandez-Lopez

William & Mary Environmental Law and Policy Review

In 2015, the City of Los Angeles adopted the controversial Mobility Plan 2035. The Plan restructures city transportation planning by emphasizing alternatives to cars for the next twenty years. Predictably, bike lanes became its most polemic aspect. The Plan envisions dramatic increases in bike lanes throughout car-obsessed Los Angeles. This bike lane increase was challenged in court, with objectors claiming that eliminating car lanes would increase congestion and compromise air quality. These arguments are ironic, since environmental justifications typically motivate bike projects.

The Mobility Plan illustrates how law supports and challenges bike lane projects. This Article argues that although this …

Does Contract Law Need Morality?, Kimberly D. Krawiec, Wenhao Liu

William & Mary Business Law Review

In The Dignity of Commerce, Nathan Oman sets out an ambitious market theory of contract, which he argues is a superior normative foundation for contract law than either the moralist or economic justifications that currently dominate contract theory. In doing so, he sets out a robust defense of commerce and the marketplace as contributing to human flourishing that is a refreshing and welcome contribution in an era of market alarmism. But the market theory ultimately falls short as either a normative or prescriptive theory of contract. The extent to which law, public policy, and theory should account for values …

Make Up For Lost Time And Money: Using The Lanham Act To Regulate The Cosmetic Industry, Maria Monastra

William & Mary Business Law Review

In recent years, the cosmetic industry has experienced an increase in litigation brought on by consumers in their efforts to protect themselves from cosmetics that are either unsafe or falsely advertised. The Supreme Court of the United States’ discussion in POM Wonderful v. Coca-Cola Co. of the Lanham Act, the United States’ principal false advertising statute, clarified the breadth and depth of allowable lawsuits brought under the statute in matters which also concern the Food, Drug, & Cosmetic Act (FDCA). The case centered on a detailed discussion of the issue of federal preemption. Although the decision directly involved only the …

Translating Legal Norms Into Quantitative Indicators: Lessons From The Global Water, Sanitation, And Hygiene Sector, Sharmila L. Murthy

William & Mary Environmental Law and Policy Review

No abstract provided.

California Rushes In—Keeping Water Instream For Fisheries Without Federal Law, Paul Stanton Kibel

William & Mary Environmental Law and Policy Review

No abstract provided.

See You In Court: Around The World In Eight Climate Change Lawsuits, Myanna Dellinger

William & Mary Environmental Law and Policy Review

No abstract provided.

“Either Secrecy, Or Legal Monopoly”: Why We Should Choose Fracking Patents, Sarah Spencer

William & Mary Environmental Law and Policy Review

No abstract provided.

Dual Sovereignty Is Out, Time For Concurrent Jurisdiction To Shine, Scott Jacobson

William & Mary Environmental Law and Policy Review

No abstract provided.

The Road To The Future: A Regulatory Regime For The Rise Of The Robot Cars, Daniel Spencer

William & Mary Environmental Law and Policy Review

No abstract provided.

Microscopic Allies: Examining And Tackling Legal And Regulatory Barriers To The Development Of Phage Therapy, Jacob Zent

William & Mary Environmental Law and Policy Review

No abstract provided.

How Well Do We Treat Each Other In Contract?, Aditi Bagchi

William & Mary Business Law Review

One of the important contributions of Nathan Oman’s new book is to draw focus onto the quality of the relationships enabled by contract. He claims that contract, by supporting markets, cultivates certain virtues; helps facilitate cooperation among people with diverse commitments; and produces the wealth that may fuel interpersonal and social justice. These claims are all plausible, though subject to individual challenge. However, there is an alternative story to tell about the kinds of relationships that arise from markets--i.e., a story about domination. The experience of domination is driven in part by the necessity, inequality, and competition enjoined by markets, …

Contract Law And The Common Good, Brian H. Bix

William & Mary Business Law Review

In The Dignity of Commerce, Nathan Oman offers a theory of contract law that is largely descriptive, but also strongly normative. His theory presents contract law’s purpose as supporting robust markets. This Article compares and contrasts Oman’s argument about the proper understanding of contract law with one presented over eighty years earlier by Morris Cohen. Oman’s focus is on the connection between Contract Law and markets; Cohen’s connection had been between Contract Law and the public interest. Oman’s work brings back Cohen’s basic insight, and gives it a more concrete form, as a formidable normative theory with detailed prescriptions.

Contract, Promise, And The Right Of Redress, Andrew S. Gold

William & Mary Business Law Review

This Essay reviews Nathan Oman’s recent book, The Dignity of Commerce. The book is compelling, and it makes an important and original contribution to contract theory—a contribution that insightfully shows how markets matter. Yet, in the course of developing a market-centered justification for contract law, The Dignity of Commerce also downplays the significance of consent and promissory morality. In both cases, the book’s argument is problematic, but this Essay will address questions of promissory morality. Oman contends that promise-based accounts struggle with contract law’s bilateralism and with its private standing doctrine. Yet, promissory morality is a very good fit …

A Pragmatist’S View Of Promissory Law With A Focus On Consent And Reliance, Robert A. Hillman

William & Mary Business Law Review

This Article discusses Professor Nate Oman’s excellent new book, The Dignity of Commerce, which makes an impressive case for how markets can produce “desirable” outcomes for society. In addition to a comprehensive account of what he calls “virtues” of markets, such as their tendency to produce cooperation, trust, and wealth, the book is full of useful and persuasive supporting information and discussions.

Oman is not only a fan of markets, but he asserts that markets are the “center” of contract theory, and provide its normative foundation. Elaborating, Oman concludes that “contract law exists primarily to support markets” and that …

Markets And Morals: The Limits Of Doux Commerce, Mark L. Movsesian

William & Mary Business Law Review

In this Essay on Professor Oman’s beautifully written and meticulously researched book, The Dignity of Commerce, I do three things. First, I describe what I take to be the central message of the book, namely, that markets promote liberal values of tolerance, pluralism, and cooperation among rival, even hostile groups. Second, I show how Oman’s argument draws from a line of political and economic thought that dates to the Enlightenment, the so-called doux commerce thesis of thinkers like Montesquieu and Adam Smith. Finally, I discuss what I consider the most penetrating criticism of that thesis, Edmund Burke’s critique from …

The Biologics Price Competition And Innovation Act: Is A Generic Market For Biologics Attainable?, Kasey E. Koballa

William & Mary Business Law Review

The Biologics Price Competition and Innovation Act of 2009 (BPCIA) provides an abbreviated approval pathway for biological therapeutic products shown to be biosimilar to an FDA-approved biological reference product. The BPCIA purported to reduce the price of biologics while promoting innovation. In two recent cases, the Federal Circuit interpreted a key provision of the BPCIA requiring an applicant to provide the reference product sponsor with notice 180 days before marketing the product. The Federal Circuit’s interpretation extends the exclusivity period already provided for the reference product sponsor, deterring innovation and price reduction. Thus, the Supreme Court granted certiorari in one …

Untrustworthy: Erisa’S Eroded Fiduciary Law, Peter J. Wiedenbeck

William & Mary Law Review

The trust law analogy has come to dominate judicial thinking about employee benefit plans. Yet despite its rise to rhetorical prominence, ERISA fiduciary law has been dramatically transformed by a series of uncoordinated, low-visibility judicial decisions on multiple fronts. These apparently unconnected case law developments reveal a startling pattern of mutually reinforcing restrictions on ERISA’s protection of pension and welfare benefits. This study chronicles ERISA’s trust law turn to expose how untrustworthy workers’ benefit safeguards have become. Both the scope and the intensity of fiduciary oversight have been radically pruned back in the courts. Notwithstanding the congressional declaration that attempts …

Motion To Dismiss For Failure To Succeed On The Merits: The Eeoc And Rule 12(B)(6), Perry F. Austin

William & Mary Law Review

No abstract provided.

Gender Disparity In Law Review Citation Rates, Christopher A. Cotropia, Lee Petherbridge

William & Mary Law Review

Gender disparity in scholarly influence—measured in terms of differential citation to academic work—has been widely documented. The weight of the evidence is that, in many fields of academic inquiry, papers authored by women receive fewer citations than papers authored by men. To investigate whether a similar gender disparity in scholarly influence exists in legal studies, we analyze the impact of gender on citation to articles published in top 100 law reviews between 1990 and 2010. We find evidence of gender disparity in citation rates, but in surprising contrast to observations made in other disciplines, we observe that articles authored by …

Goldilocks And The Rule 803 Hearsay Exceptions, Liesa L. Richter

William & Mary Law Review

Criticism of the hearsay exceptions embodied in the Federal Rules of Evidence has reached a fever pitch in recent years. With scholars calling for the abrogation of the entire hearsay regime or of individual exceptions within it and the Advisory Committee on Evidence Rules exploring hearsay amendments, the time for genuine hearsay soul-searching may be at hand. This Article suggests that aggressive proposals to scuttle existing doctrine entirely in favor of alternative approaches to hearsay are overly broad, rejecting the benefits of significant portions of existing doctrine that are functioning well and threatening costly consequences that could make matters worse …

Worth The Click: Why Greater Ftc Enforcement Is Needed To Curtail Deceptive Practices In Influencer Marketing, Laura E. Bladow

William & Mary Law Review

No abstract provided.