Law Commons^™

Regulating Dynamic Risk In Changing Market Conditions, Susan Navarro Smelcer, Anne Tucker, Yusen Xia

William & Mary Business Law Review

How successful are the SEC's attempts to regulate dynamic risk in financial markets? Using mutual fund disclosure data from two financial shocks--the Puerto Rican debt crisis and COVID-19--this Article finds evidence that SEC open-ended regulations, like the obligation to disclose changing market conditions, are largely successful in capturing dynamic, future risk. Funds engage in widespread and, often, detailed disclosures for new risks--although these disclosures vary widely in specificity. But not all funds disclose new risks. This creates perverse incentives for funds to opt out of disclosure or downplay threats with boilerplate language when new risks are emerging. This Article recommends …

Private Rights Of Action In Privacy Law, Lauren Henry Scholz

William & Mary Law Review

Many privacy advocates assume that the key to providing individuals with more privacy protection is strengthening the government’s power to directly sanction actors that hurt the privacy interests of citizens. This Article contests the conventional wisdom, arguing that private rights of action are essential for privacy regulation. First, I show how private rights of action make privacy law regimes more effective in general. Private rights of action are the most direct regulatory access point to the private sphere. They leverage private expertise and knowledge, create accountability through discovery, and have expressive value in creating privacy-protective norms. Then to illustrate the …

Substituted Service And The Hague Service Convention, William S. Dodge

William & Mary Law Review

State law plays a surprisingly large role in transnational litigation, and how it defines the applicability of the Hague Service Convention is an important example. In Volkswagenwerk Aktiengesellschaft v. Schlunk, the U.S. Supreme Court held that the Convention does not apply when, under state law, service of process is made within the United States. In Schlunk, Illinois law permitted substituted service on the U.S. subsidiary of a foreign parent company, so the Convention did not apply. This Article looks at substituted service under state law today and when it permits avoidance of the Hague Convention. The Article focuses …

In-Lieu Fee Program Case Studies: Lessons Learned For Potentially Expanding In-Lieu Fee Habitat Coverage In Virginia, Erika Bosack, Luke Miller

Virginia Coastal Policy Center

This white paper contains case studies of coastal ILF [in-lieu fee] programs across the United States: Maine Natural Resources Conservation Program (“MNRCP”), Northwest Florida Water Management District (“NWFWMD”) ILF Program, Keys Restoration Fund (“KRF”), Sacramento District California ILF Program, Maryland Department of the Environment ILF Program, and Virginia Aquatic Resources Trust Fund (“VARTF”). The Conclusion will provide general recommendations and questions to consider in deciding whether and how to implement an in-lieu fee program for wildlife habitats in Virginia. Each program has a unique regulatory structure and method for selecting projects on which to spend their funds. The programs do …

Endorsing After Death, Andrew Gilden

William & Mary Law Review

An endorsement is an act of giving one’s public support to a person, product, service, or cause; accordingly, it might seem impossible for someone to make an endorsement after they have died. Nevertheless, posthumous endorsements have become commonplace in social media marketing and have been increasingly embraced by trademark and unfair competition laws. Entities representing Marilyn Monroe, for example, have successfully brought trademark claims for the unauthorized use of Monroe’s name, have successfully brought false endorsement claims under section 43(a) of the Lanham Act, and regularly have promoted products through the Instagram-verified “@marilynmonroe” page. Marilyn Monroe survives today as a …

Abortion, Sterilization, And The Universe Of Reproductive Rights, Melissa Murray

William & Mary Law Review

In recent years, a new narrative associating reproductive rights with the eugenics movement of the 1920s has taken root. As this narrative maintains, in the 1920s, Margaret Sanger, a pioneer of the modern birth control movement, joined forces with the eugenics movement to market family planning measures to marginalized minority communities.

Although the history undergirding this narrative is incomplete and misleading, the narrative itself has flourished as the debate over the continued vitality of reproductive rights has unfolded in the United States. Indeed, in just the last three years, a member of the United States Supreme Court and a number …

Disclosure Of Private Climate Transition Risks, Michael P. Vandenbergh

William & Mary Law Review

This Article identifies a gap in the securities disclosure regime for climate change and demonstrates how filling the gap can improve financial disclosures and accelerate climate change mitigation. Private climate initiatives have proliferated in the last decade. Often led by advocacy groups, these private initiatives have used naming and shaming campaigns and other means to induce investors, lenders, insurers, retail customers, supply chain customers, and employees to pressure firms to engage in climate change mitigation. Based on an empirical assessment of the annual reports filed with the Securities and Exchange Commission (SEC) by Fortune 100 firms and the largest firms …

No Child Left Behind Bars: Applying The Principles Of Strict Scrutiny When Sentencing Juveniles Tried As Adults, Max Chu

William & Mary Law Review

The Commonwealth of Virginia was the first in the nation to pass legislation that provides judges with the discretion to veer away from the mandatory minimum sentence and to impose trauma-informed and age-appropriate sentences for juvenile offenders convicted of felonies and tried as adults. Although Virginia’s new law, House Bill 744 (HB 744), is a pioneering step in the right direction, this Note argues that the law may now provide judges with too much discretion. In other words, HB 744 alone, without more guidance, does not go far enough to protect the rights of juvenile offenders.

Therefore, this Note proposes …

Fourth Amendment Infringement Is Afoot: Revitalizing Particularized Reasonable Suspicion For Terry Stops Based On Vague Or Discrepant Suspect Descriptions, Caroline E. Lewis

William & Mary Law Review

In Terry v. Ohio, the Supreme Court granted law enforcement broad power to perform a limited stop and search of someone when an officer has reasonable suspicion that the person is engaged in criminal activity. The resulting “Terry stop” created a way for police officers to investigate a suspicious person without requiring full probable cause for an arrest. The officer need only have “reasonable suspicion supported by articulable facts” based on the circumstances and the officer’s policing “experience that criminal activity may be afoot.” Reasonable suspicion is—by design—a broad standard, deferential to police officers’ judgment. Law enforcement officers …

Abandoned And Derelict Vessels In The Commonwealth: How To Improve Virginia's Adv Program, Anthony Cusato

Virginia Coastal Policy Center

Vessels abandoned or lost by their owners can get stuck on a shoreline or in a marsh, aimlessly float adrift, or sink in a waterway. As the number of ADVs [abandoned and derelict vessels] increases, efforts to address them similarly intensify. Typically, state government agencies handle most ADVs, and their approaches to ADV control and removal vary widely across jurisdictions. Virginia faces an increasing number of ADVs and can learn from other states to improve its approach. This paper examines the current Virginia ADV program and considers how it can be amended to make it more effective. It then identifies …

Tribal Resilience And Community Plans: A Primer For Tribal Communities Looking To Create Their Own, Karly Newcomb

Virginia Coastal Policy Center

This paper serves as an overview of various Tribal resilience plans across the nation and community planning efforts in Virginia. Although each plan is particularly detailed to address one locality’s specified areas of concern, the plans are fully adaptable to meet any community’s particular needs. Additionally, the paper includes a synthesis of commonalities that these plans share with the goal of providing an overview of resilience plan options and strategies that can be used as a framework for Tribal communities looking to create their own plans.

This abstract has been taken from the author's introduction.

Tribal Communities And State And Local Governments: Existing Relationships, Mikayla Mangle

Virginia Coastal Policy Center

Tribal and state/local governments have maintained a unique and crucial relationship throughout the United States’ history. Today, state and federally recognized Tribes sometimes face obstacles when attempting to implement projects due to state or local government opposition and vice versa. Federally recognized Tribes are sovereign, self-governing entities on equal footing with state governments. State recognized tribes, on the other hand, may not be equal to state governments, depending on the state laws regarding tribal state recognition. State recognized tribes do not have the same benefits as federally recognized tribes in that the tribe’s status is recognized by the state but …

A Study Of Tribal Communication Frameworks: Some Approaches To Building Partnerships Between Tribal, State, And Local Governments In Virginia, Karly Newcomb, Abigail Sisti

Virginia Coastal Policy Center

This paper discusses options the Commonwealth could consider when evaluating decision-making processes that affect tribes in Virginia, with the goal of improving communication and collaboration between tribal, state, and local governments; and will highlight key case studies from other states and localities that provide precedents. The following options are based on a framework of free, prior, and informed consent, which emphasizes self-determination and an individual right to pursue economic, social, and cultural development. This framework can be applied to decision making and projects for any topic. Moving forward, government-to-government communication will be key to developing solutions to pressing issues such …

Protecting Terrapins With Teds In Virginia: Lessons From Other States, Bridget Verrekia, Shelby Fuchs

Virginia Coastal Policy Center

This paper highlights case studies about other states' efforts to require or incentivize the use of TEDs [terrapin excluder devices] and recommends policies for Virginia to adopt that have proven successful elsewhere. First, it outlines the threats to terrapins at large, as well as the threat posed by commercial and recreational crabbing, specifically. Next, it details the efforts that other East Coast states have made to combat the problem, including policies that require or incentivize the use of TEDs on crab pots, and discusses the regulatory framework currently in place in Virginia. Finally, this paper concludes by analyzing the approaches …

Gimme Shelter: Amending Fema's Enabling Legislation To Permit Citizen Suits For Failures In Disaster Recovery Efforts, Zachary R.M. Outzen

William & Mary Environmental Law and Policy Review

This Note argues that democratizing the disaster relief process through enabling citizen suits against FEMA to timely deliver housing relief assistance is one potential solution to the immense problem at hand. This Note provides an overview of FEMA’s obligations to survivors of natural disasters under both federal law and evolving interpretations of binding international law. This Note asserts that FEMA’s repeated failure to deliver necessary disaster relief aid to these survivors constitutes violations of these obligations. This Note will then assert that the issue underlying these failures (i.e., flawed administrative and bureaucratic processes) is analogous to similar failures by environmental …

Foreword To Environmental Justice In America: Where We Have Been & Can Go, Zachary R.M. Outzen

William & Mary Environmental Law and Policy Review

Recognizing that recent progress is only the beginning in a long journey to rectifying past environmental injustices, this Symposium was convened to ask two critical questions regarding the state of environmental justice in America today. First, how did we get here? Second, how do we move forward?

With an eye to a future in which America lives up to Dr. Bob Bullard’s vision of environmental justice, the Symposium hosted four panel discussions, featuring scholars of legal and non-legal disciplines, attorneys and non-legal advocates, and the members of the marginalized communities on the front lines of the struggle for environmental justice. …

Making The Best From A Mess: Mental Health, Misconduct, And The "Insanity Defense" In The Va Disability Compensation System, Caleb R. Stone

Faculty Publications

The disability compensation system implemented by the Department of Veterans Affairs ("VA") is highly technical and complex. Before veterans reach questions concerning entitlement to benefits or the amount of compensation, they must first achieve basic eligibility for VA benefits. That involves receiving a discharge that is "honorable" for VA purposes. For some former servicemembers seeking benefits, using the VA's "insanity defense" to excuse misconduct leading to a less-than-honorable discharge may be the best avenue for obtaining compensation. The VA insanity provision contemplated in 38 U.S.C. s. 5303(b) and defined in 38 C.F.R. s. 3.354 is the only "defense" that allows …

I Have To Tell Them What? The New Corporate Transparency Act And Forming Business Entities In Virginia, James J. Wheaton, Gustavo De La Cruz Reynozo

Faculty Publications

The details and requirements of business entity formation traditionally have been solely the province of state law. Most states, such as Virginia, maintain corporate annual report filing requirements that involve the public disclosure of corporate officers and directors. However, these requirements focus on active managers of the entities, not information about beneficial ownership. The recently enacted Corporate Transparency Act ("CTA") will fundamentally change entity disclosure on the national level.

The CTA was part of the fiscal year 2021 National Defense Authorization Act and seeks to aid national security and crime fighting through a national registry of beneficial owners of business …

Aals Federal Courts Section Newsletter, Katherine Mims Crocker, Celestine Mcconville

Popular Media

No abstract provided.

U.S. News Rankings Get It Right On Law Libraries, Amanda Runyon, Leslie A. Street, Amanda Watson

Library Staff Publications

No abstract provided.

Rebuilding Ukraine Will Be Costly. Here's How To Make Putin Pay., Evan Criddle

Popular Media

No abstract provided.

The Brief (Edition #16, March 2022), William & Mary Law School

The Brief

No abstract provided.

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 …

Hope Dies Last: The Progressive Potential And Regressive Reality Of The Antibalkanization Approach To Racial Equality, David Simson

William & Mary Bill of Rights Journal

This Article relies on Critical Race Theory concepts and social science research to make an important and timely contribution to a debate in law and public policy that is both long-standing and of immense current importance: What is the relationship between social cohesion on the one hand, and racial equality progress on the other?

[...]

Over the last four decades, the Supreme Court’s equal protection jurisprudence on governmental race-consciousness has answered with an “antibalkanization approach” which prioritizes social cohesion. Indeed, this approach views social cohesion as a prerequisite for racial equality progress. It considers racial hostility and resentment among White …

From Private Prejudice To Public Policy: How Religious Conservatives Use Liberalism To Control Women's Bodies -- The United States And Israel In Comparative Perspective, Gila Stopler

William & Mary Bill of Rights Journal

The Article uses the feminist critique of the patriarchal nature of religion and liberalism, the feminist critique of flaws in political liberalism, and a socio-political analysis of the power of religious conservative groups in the United States and Israel to claim that religious conservatives use the patriarchal nature of liberalism, its inherent flaws, and conservative political power to turn private religious prejudice into public policy. Analyzing the constitutional and legal status of religion in the United States and the recent dramatic changes it has undergone, the Article shows that contrary to popular belief, and due to the aforementioned factors, the …

Solidifying Supremacy Clause Immunity, Leslie A. Gardner, Justin C. Van Orsdol

William & Mary Bill of Rights Journal

States have often taken different approaches to polarizing issues such as the legalization of marijuana, voting rights, and gun safety. Generally, the federal government has stayed out of the fray honoring the concept of the “states as laboratories.” That is, until recently. With increasing debate among political leaders and diverging viewpoints among Department of Justice officials, clashes between federal officers and state governments have increased. But what happens to a federal officer caught in the crossfire, charged by a state prosecutor for breaking state criminal law while attempting to enforce federal law? The answer lies in the doctrine of Supremacy …

Wal-Mart Stores, Inc. V. Texas Alcoholic Beverage Commission: The Supreme Court Misses Its "Shot" At Clarifying State Alcohol Regulations And The Commerce Clause, Josephine Battles

William & Mary Bill of Rights Journal

The Supreme Court erred by denying certiorari in Wal-Mart Stores, Inc. v. Texas Alcoholic Beverage Commission. The Texas statute that bans all publicly traded corporations from obtaining a license to sell liquor, but carves an exception for some Texas-run public corporations through an express clause, is in direct violation of the dormant Commerce Clause. The Texas Legislature disguised the public corporation ban as a “facially neutral” alcohol regulation, however, the ban is discriminatory towards out-of-state competitors in both its purpose and effect. Moreover, the Fifth Circuit’s decision in Wal-Mart Stores is firmly inconsistent with Supreme Court precedent. Additionally, the …

The Coddling Of The American Worker's Mind: The Anti-Free Speech Nature Of Popular Labor Law Reforms, Daniel V. Johns

William & Mary Bill of Rights Journal

As the nation enters an era in which a new presidential administration will likely push such labor law reforms, it is worth considering whether transparently anti-free speech reform measures make sense for the future of labor policy and law. This Article argues that they do not. Because employee free choice is furthered, not diminished, by hearing both sides of an issue, American workers should have the opportunity to hear and evaluate employer speech in the course of union campaigns. Only then can employees make an informed decision about their workplace future. In the end, freedom of speech furthers employee freedom …

Not So Objective Indicia: Why Public Polling And Ballot Referenda Could Create A More Concrete Standard For Eighth Amendment Objective Indicia Analysis, Jonathan Marchuk

William & Mary Bill of Rights Journal

The Eighth Amendment states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Through the Fourteenth Amendment, these restrictions on punishment are applicable to the states. Over the years, the interpretation of what constitutes cruel and unusual punishment has changed. Cruel and unusual punishments include those punishments that are greatly disproportionate to the committed offense, but what is considered a disproportionate punishment is not a static judgment. Instead, part of the proportionality analysis of the punishment to the crime looks to “the evolving standards of decency that mark the progress of a …

All The Sovereign's Agents: The Constitutional Credentials Of Administration, Kate Jackson

William & Mary Bill of Rights Journal

[...] This Article suggests that agency institutions should be measured against the notion that popular sovereignty demands not consensus and consent, but instead institutions that permit citizens to understand themselves as coequal participants in the collective decision-making process.

Part I situates administrative agencies in an understanding of liberal democratic constitutionalism that eschews outmoded notions of popular sovereignty and natural law. It will then explain how adequately conceived notions of the separation of powers and the rule of law cannot serve as indefeasible objections to administration. Part II makes a positive case for agency authority by drawing from the insights gained …