Law Commons^™

Applying Equitable Estoppel To Erisa Pension Benefit Claims, Adam S. Mcgonigle

William & Mary Law Review

No abstract provided.

In Name Only: How Major League Baseball's Reliance On Its Antitrust Exemption Is Hurting The Game, Samuel G. Mann

William & Mary Law Review

No abstract provided.

The Litigation Finance Contract, Maya Steinitz

William & Mary Law Review

Litigation funding—for-profit, nonrecourse funding of a litigation by a nonparty—is a new and rapidly developing industry. It has been described as one of the “biggest and most influential trends in civil justice” today by RAND, the New York Times, and others. Despite the importance and growth of the industry, there is a complete absence of information about or discussion of litigation finance contracting, even though all the promises and pitfalls of litigation funding stem from the relationships those contracts establish and organize. Further, the literature and case law pertaining to litigation funding have evolved from an analogy between litigation funding …

The Role Of Aspiration In Corporate Fiduciary Duties, Julian Velasco

William & Mary Law Review

Corporate law is characterized by a pervasive divergence between standards of conduct and standards of review. Courts often opine on the relatively demanding standard of conduct, but their judgments must be based on the more forgiving standard of review. Commentators defend this state of affairs by insisting that it provides guidance to directors without imposing ruinous liability. However, the dichotomy can lead many, especially those who focus on the bottom line, to call into question the meaningfulness of standards of conduct. Of particular concern is the increasing popularity, in legal and scholarly circles, of the notion that fiduciary duty standards …

The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen

William & Mary Law Review

Democracy does not spontaneously occur by citizens gathering to choose laws. Instead, representative democracy takes place within an extensive legal framework that determines such matters as who gets to vote, how campaigns are conducted, and what conditions must be met for representatives to make valid law. Many of the “rules of the road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against partisan gerrymandering—which is partly responsible for the fact that most congressional districts are no longer party competitive, but instead are either safely Republican or safely Democratic—and against onerous …

Spandrel Or Frankenstein's Monster? The Vices And Virtues Of Retrofitting In American Law, Michael C. Dorf

William & Mary Law Review

No abstract provided.

Information Wants To Be Free (Of Sanctions): Why The President Cannot Prohibit Foreign Access To Social Media Under U.S. Export Regulations, Jarred O. Taylor Iii

William & Mary Law Review

No abstract provided.

Beyond Morrison: The Effect Of The "Presumption Against Extraterritoriality" And The Transactional Test On Foreign Tender Offers, Vladislava Soshkina

William & Mary Law Review

No abstract provided.

Cities, Property, And Positive Externalities, Gideon Parchomovsky, Peter Siegelman

William & Mary Law Review

Cities are the locales of numerous interactions that generate externalities—both negative and positive. Although the common law provides a vast array of mechanisms for limiting negative externalities, there is a striking absence of provisions for stimulating the production of positive ones. As a consequence, activities whose social benefits are greater than their private costs are not undertaken, with a resulting efficiency loss.

In this Article, we demonstrate how cities can develop commercial districts that allow for the capture of positive externalities by following the example of suburban malls. In malls, anchor stores provide positive externalities—additional customers—to neighboring stores. Anchors capture …

The Equal Protection Implications Of Government's Hateful Speech, Helen Norton

William & Mary Law Review

Under what circumstances should we understand government’s racist or otherwise hateful speech to violate the Equal Protection Clause? Government speech that communicates hostility or animus on the basis of race, gender, national origin, sexual orientation, or other class status can facilitate private parties’ discriminatory behavior, deter its targets from certain important opportunities or activities, and communicate a message of exclusion and second-class status. Contemporary equal protection doctrine, however, does not yet fully address the harms that such government expression potentially poses. The recent emergence of the Court’s government speech doctrine—which to date has emphasized the value of government expression without …

Resolving Election Error: The Dynamic Assessment Of Materiality, Justin Levitt

William & Mary Law Review

The ghosts of the 2000 presidential election will return in 2012. Photo-finish and error-laden elections recur in each cycle. When the margin of error exceeds the margin of victory, officials and courts must decide which, if any, errors to discount or excuse, knowing that the answer will likely determine the election’s winner. Yet despite widespread agreement on the likelihood of another national meltdown, neither courts nor scholars have developed consistent principles for resolving the errors that cause the chaos.

This Article advances such a principle, reflecting the underlying values of the electoral process. It argues that the resolution of an …

Jurisdictional Procedure, Justin Pidot

William & Mary Law Review

Scholars have lavished attention on the substance of jurisdictional doctrines such as standing, mootness, diversity, and federal question. They have left largely unexamined, however, the procedures courts use to address these doctrines; collectively, I refer to these procedures as “jurisdictional procedure.” A paramount feature of jurisdictional procedure is the unique and virtually unqualified obligation federal courts possess to identify and decide issues of subject matter jurisdiction even if the parties and lower courts overlook these issues. Courts have reached no consensus about how to identify the facts necessary to effectuate this obligation. The confluence of court-initiated legal inquiry and unpredictable …

Setting The Terms Of A Break-Up: The Convergence Of Federal Merger Remedy Policies, Jessica C. Strock

William & Mary Law Review

No abstract provided.

Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel

William & Mary Law Review

More than four decades have passed since the U.S. Supreme Court revolutionized the First Amendment rights of the public workforce. In the ensuing years the Court has embarked upon an ambitious quest to protect expressive liberties while facilitating orderly and efficient government. Yet it has never articulated an adequate theoretical framework to guide its jurisprudence.

This Article suggests a conceptual reorientation of the modern doctrine. The proposal flows naturally from the Court’s rejection of its former view that one who accepts a government job has no constitutional right to complain about its conditions. As a result of that rejection, the …

What Is The "Invention"?, Christopher A. Cotropia

William & Mary Law Review

Patent law is in flux, with recent disputes and changes in doctrine fueled by increased attention from the Supreme Court and en banc activity by the Federal Circuit. The natural reaction is to analyze each doctrinal area involved on its own. Upon a closer look, however, many patent cases concern a single, fundamental dispute. Conflicts in opinions on such issues as claim interpretation methodology and the written description requirement are really disagreements over which “invention” the courts should be considering.

There are two concepts of invention currently in play in patent decisions. The first is an “external invention” definition, in …

The Null Patent, Sean B. Seymore

William & Mary Law Review

Failure is the basis of much of scientific progress because it plays a key role in building knowledge. In fact, negative results compose the bulk of knowledge produced in scientific research. This is not a bad thing because failures always produce valuable technical information—whether it be a serendipitous finding, an abundance of unexpected technical data, or simply knowledge that an initial hypothesis was totally wrong. Though some have recognized that the dissemination of negative results has many upsides for science, transforming scientific norms toward disclosure is no easy task. As for patent law, the potentially important role that negative results …

Business Courts And Interstate Competition, John F. Coyle

William & Mary Law Review

Over the past two decades, specialized trial courts that hear business disputes primarily or exclusively have been established in nineteen states. To explain the recent surge of interest in these courts, policymakers and scholars alike have cited the process of interstate competition. Specifically, these commentators have argued that business courts serve, among other purposes, to attract out-of-state companies to expand their business, reincorporate, or litigate disputes in the jurisdiction that created the business court.

This Article critically evaluates each of these theories. It argues first that business courts do not serve to attract companies from other states because business expansion …

Unintentional Levels Of Force In §1983 Excessive Force Claims, Nathan R. Pittman

William & Mary Law Review

No abstract provided.

The Affordable Care Act, The Constitutional Meaning Of Statutes, And The Emerging Doctrine Of Positive Constitutional Rights, Edward Rubin

William & Mary Law Review

No abstract provided.

Neuroscience In The Courtroom: An International Concern, Dominique J. Church

William & Mary Law Review

No abstract provided.

Revisiting The Impact Of Judicial Review On Agency Rulemakings: An Empirical Investigation, Wendy Wagner

William & Mary Law Review

It is generally believed that the judicial review of agency rulemakings helps protect the public interest against industry capture. Yet very little empirical research has been done to assess the accuracy of this conventional wisdom. This Study examines the entire set of air toxic emission regulations promulgated by the Environmental Protection Agency (EPA), with particular attention to those rules appealed to judgment in the court of appeals, and discovers significant disconnects between popular understanding of judicial review and rulemaking reality. Of these air toxic rules (N=90), the courts were summoned to review only a small fraction (8%), despite evidence that …

Our Federalism(S), Heather K. Gerken

William & Mary Law Review

No abstract provided.

Release As Remedy For Excessive Punishment, Alexander A. Reinert

William & Mary Law Review

Although the Eighth Amendment’s prohibition on “cruel and unusual” punishment means different things in different contexts, it plainly forecloses state and federal actors from choosing ex ante to impose a punishment that is either disproportionate or inconsistent with minimum standards of decency. In other words, the Eighth Amendment mandates that no punishment be imposed if the only other choice on the table is an unconstitutional punishment. Although this principle can be gleaned from the disparate strands of Eighth Amendment jurisprudence, its remedial consequence has not been fully implemented. In this Article, I propose that providing a remedy of release from …

Katz Cradle: Holding On To Fourth Amendment Parity In An Age Of Evolving Electronic Communication, Christopher R. Brennan

William & Mary Law Review

No abstract provided.

The Restyled Federal Rules Of Evidence, Davison M. Douglas, Sidney A. Fitzwater, Daniel J. Capra, Robert A. Hinkle, Joseph Kimble, Joan N. Ericksen, Marilyn L. Huff, Reena A. Raggi, Geraldine Soat Brown, Edward H. Cooper, Kenneth S. Broun, Harris L. Hartz, Katharine Traylor Schaffzin, Roger C. Park, Deborah J. Merritt, Andrew D. Hurwitz, W. Jeremy Counseller, Paula Hannaford-Agor

William & Mary Law Review

A lightly edited transcript of the Symposium held at the William & Mary School of Law on October 28, 2011.

Disability Cause Lawyers, Michael E. Waterstone, Michael Ashley Stein, David B. Wilkins

William & Mary Law Review

There is a vast and growing cause lawyering literature demonstrating how attorneys and their relationship to social justice movements matter greatly for law’s ability to engender progress. But to date, there has been no examination of the work of ADA disability cause lawyers as cause lawyers. Similarly, despite an extensive literature focused on the ADA’s revolutionary civil rights aspects and the manner in which the Supreme Court’s interpretation of that statute has stymied potential transformation of American society, no academic accounts of disability law have focused on the lawyers who bring these cases. This Article responds to these scholarly voids. …

Negligent Hiring And The Information Age: How State Legislatures Can Save Employers From Inevitable Liability, Katherine A. Peebles

William & Mary Law Review

No abstract provided.

The "Flesh And Blood" Defense, James Erickson Evans

William & Mary Law Review

No abstract provided.

Explaining The Supreme Court's Shrinking Docket, Ryan J. Owens, David A. Simon

William & Mary Law Review

In recent years, the United States Supreme Court has decided fewer cases than at any other time in its recent history. Scholars and practitioners alike have criticized the drop in the Court’s plenary docket. Some even believe that the Court has reneged on its duty to clarify and unify the law. A host of studies examine potential reasons for the Court’s change in docket size, but few rely on an empirical analysis of this change and no study examines the correlation between ideological homogeneity and docket size. In a comprehensive study, the authors analyze ideological and contextual factors to determine …

Interpretive Contestation And Legal Correctness, Matthew D. Adler

William & Mary Law Review

No abstract provided.