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Articles 1 - 30 of 47
Full-Text Articles in Law
A Realistic Approach To The Obviousness Of Inventions, Daralyn J. Durie, Mark A. Lemley
A Realistic Approach To The Obviousness Of Inventions, Daralyn J. Durie, Mark A. Lemley
William & Mary Law Review
No abstract provided.
The Failure Of Punitive Damages In Employment Discrimination Cases: A Call For Change, Joseph A. Seiner
The Failure Of Punitive Damages In Employment Discrimination Cases: A Call For Change, Joseph A. Seiner
William & Mary Law Review
Punitive damages were described by one early court as "an unsightly and an unhealthy excrescence." Although views toward punitive relief have changed over the years, the debate over the availability of exemplary damages in the judicial system has remained controversial. No place is that controversy more aptly demonstrated than in employment discrimination law, where punitive damages first became available in an amendment to Title VII of the Civil Rights Act of 1964 after a bitter congressional debate. Almost a decade ago, in Kolstad v. American Dental Association, the Supreme Court provided guidance on how punitive damages should be applied in …
State Regulation Of Sexuality In International Human Rights Law And Theory, Aaron Xavier Fellmeth
State Regulation Of Sexuality In International Human Rights Law And Theory, Aaron Xavier Fellmeth
William & Mary Law Review
In Part I, this Article presents the first published, worldwide survey of international practice in interpreting and applying various international human rights norms to the issue of sexual freedom, with a special emphasis on the rights to privacy, family life, and freedom from arbitrary discrimination based on sexual orientation. Although progress toward general recognition of such rights by international authorities and states has been extremely rapid over a very short period, such recognition continues to vary geographically and according to the subject matter. For example, some rights, such as the right to consensual, adult, private intercourse have achieved more widespread …
I'Ll Make You A Deal: How Repeat Informants Are Corrupting The Criminal Justice System And What To Do About It, Emily Jane Dodds
I'Ll Make You A Deal: How Repeat Informants Are Corrupting The Criminal Justice System And What To Do About It, Emily Jane Dodds
William & Mary Law Review
No abstract provided.
Imperial And Imperiled: The Curious State Of The Executive, Saikrishna B. Prakash
Imperial And Imperiled: The Curious State Of The Executive, Saikrishna B. Prakash
William & Mary Law Review
In the last four decades, the presidency has been characterized both as the "imperial presidency" as well as the "imperiled presidency. "From an originalist perspective, both camps have elements of truth on their side. When it comes to the conduct and initiation of wars, modern Presidents exercise powers that rival those the Crown possessed in England. Presidents claim the power to start wars, notwithstanding Congress's power to declare war. Moreover, Presidents insist that they have the sole right to determine how the armed forces will wage all wars, even though Congress clearly has considerable power over the armed forces. Law …
Murderous Madonna: Femininity, Violence, And The Myth Of Postpartum Mental Disorder In Cases Of Maternal Infanticide And Filicide, Heather Leigh Stangle
Murderous Madonna: Femininity, Violence, And The Myth Of Postpartum Mental Disorder In Cases Of Maternal Infanticide And Filicide, Heather Leigh Stangle
William & Mary Law Review
No abstract provided.
Reconstructing The Dormant Commerce Clause Doctrine, Brannon P. Denning
Reconstructing The Dormant Commerce Clause Doctrine, Brannon P. Denning
William & Mary Law Review
In this Article, I argue that the alleged incoherence and unpredictability of the dormant Commerce Clause doctrine (DCCD) is rooted in the Supreme Court's search, through the years, for a stable set of rules enabling it to distinguish permissible from impermissible state regulations of interstate commerce and commercial actors. Its lack of success, the Article argues, is due in large part to the Court's inability to settle on the constitutional command the doctrine was to enforce. Historically, the Court would promulgate a set of rules, apply them for a time, then alter or modify them as the rules became unsatisfactory. …
The Continuing Drift Of Federal Sovereign Immunity Jurisprudence, Gregory C. Sisk
The Continuing Drift Of Federal Sovereign Immunity Jurisprudence, Gregory C. Sisk
William & Mary Law Review
With the enduring doctrine of federal sovereign immunity, it is too late in the day to suggest that the United States should be treated as an ordinary party in the federal courts. Yet as the Supreme Court has become more comfortable with the increasingly common encounter with a statutory waiver of immunity, the rigidity of interpretive approach has eased. An early jaundiced judicial attitude has resolved into a greater respect for the legislative promise of relief to those harmed by their government. After sketching the history of statutory waivers over the past century-and-a-half and examining Supreme Court decisions across the …
The Dangers Of The Digital Millennium Copyright Act: Much Ado About Nothing?, Steve P. Calandrillo, Ewa M. Davison
The Dangers Of The Digital Millennium Copyright Act: Much Ado About Nothing?, Steve P. Calandrillo, Ewa M. Davison
William & Mary Law Review
In 1998, Congress passed the Digital Millennium Copyright Act (DMCA), a landmark piece of legislation aimed at protecting copyright holders from those who might manufacture or traffic technology capable of allowing users to evade piracy protections on the underlying work. At its core, the DMCA flatly prohibits the circumvention of "technological protection measures "in order to gain access to copyrighted works, but provides no safety valve for any traditionally protected uses. While hailed as a victory by the software and entertainment industries, the academic and scientific communities have been far less enthusiastic. The DMCA's goal of combating piracy is a …
How Wide Should The Actual Innocence Gateway Be? An Attempt To Clarify The Miscarriage Of Justice Exception For Federal Habeas Corpus Proceedings, Jennifer Gwynne Case
How Wide Should The Actual Innocence Gateway Be? An Attempt To Clarify The Miscarriage Of Justice Exception For Federal Habeas Corpus Proceedings, Jennifer Gwynne Case
William & Mary Law Review
No abstract provided.
Procrastination, Deadlines, And Statutes Of Limitation, Andrew J. Wistrich
Procrastination, Deadlines, And Statutes Of Limitation, Andrew J. Wistrich
William & Mary Law Review
Statutes of limitation are deadlines. Although psychologists have discovered a great deal about how people respond to deadlines during the past thirty years, the basic structure of statutes of limitation has not changed since at least 1623. This Article explores the question of whether the received model of statutes of limitation remains optimal in light of what we now know about procrastination, the planning fallacy, loss aversion, intertemporal discounting, the student syndrome, and other features of human cognition. It concludes by suggesting a more modern approach to statutes of limitation that is based on a better understanding of how people …
Patently Protectionist? An Empirical Analysis Of Patent Cases At The International Trade Commission, Colleen V. Chien
Patently Protectionist? An Empirical Analysis Of Patent Cases At The International Trade Commission, Colleen V. Chien
William & Mary Law Review
The International Trade Commission (ITC) provides a special forum for adjudicating patent disputes involving imports. It offers several advantages over United States district courts to patentees, including relaxed jurisdictional requirements, speed, and unique remedies. Unlike district courts, the ITC almost automatically grants injunctive relief to prevailing patentees, and does not recognize certain defenses to infringement. These features have been justified as needed to prosecute foreign infringers who would otherwise evade U.S. district courts. They have also led to charges that the ITC is protectionist and unfair to defendants and that it fosters inconsistency in U.S. patent law. Based on an …
Possession Is Nine Tenths Of The Law: But Who Really Owns A Church's Property In The Wake Of A Religious Split Within A Hierarchical Church?, Meghaan Cecilia Mcelroy
Possession Is Nine Tenths Of The Law: But Who Really Owns A Church's Property In The Wake Of A Religious Split Within A Hierarchical Church?, Meghaan Cecilia Mcelroy
William & Mary Law Review
No abstract provided.
Initiating A New Constitutional Dialogue: The Increased Importance Under Aedpa Of Seeking Certiorari From Judgments Of State Courts, Giovanna Shay, Christopher Lasch
Initiating A New Constitutional Dialogue: The Increased Importance Under Aedpa Of Seeking Certiorari From Judgments Of State Courts, Giovanna Shay, Christopher Lasch
William & Mary Law Review
The Antiterrorism and Effective Death Penalty Act (AEDPA) contains a provision restricting federal courts from considering any authority other than holdings of the Supreme Court in determining whether to grant a state prisoner's petition for habeas corpus. Through an empirical study of cert filings and cases decided by the Supreme Court, we assess this provision's impact on the development of federal constitutional criminal doctrine. Before AEDPA and other restrictions on federal habeas corpus, lower federal courts and state courts contributed to doctrinal development by engaging in a "dialogue" (as described by Robert M. Cover and T. Alexander Aleinikoff in a …
The Taxation Of Private Equity Carried Interests: Estimating The Revenue Effects Of Taxing Profit Interests As Ordinary Income, Michael S. Knoll
The Taxation Of Private Equity Carried Interests: Estimating The Revenue Effects Of Taxing Profit Interests As Ordinary Income, Michael S. Knoll
William & Mary Law Review
In this Article, I estimate the tax revenue effects of taxing private equity carried interests as ordinary income rather than as long-term capital gain as under current law. Under reasonable assumptions, I conclude that the expected present value of additional tax collections would be between 1 percent and 1.5 percent of capital invested in private equity funds, or between $2 billion and $3 billion a year. That estimate, however, makes no allowance for changes in the structure of such funds or the composition of the partnerships, which might substantially reduce tax revenues below those estimates.
Death By A Thousand Cases: After Booker, Rita, And Gall, The Guidelines Still Violate The Sixth Amendment, David C. Holman
Death By A Thousand Cases: After Booker, Rita, And Gall, The Guidelines Still Violate The Sixth Amendment, David C. Holman
William & Mary Law Review
No abstract provided.
Tempest In An Empty Teapot: Why The Constitution Does Not Regulate Gerrymandering, Larry Alexander, Saikrishna B. Prakash
Tempest In An Empty Teapot: Why The Constitution Does Not Regulate Gerrymandering, Larry Alexander, Saikrishna B. Prakash
William & Mary Law Review
Judges and scholars are convinced that the Constitution forbids gerrymandering that goes "too far"--legislative redistrictings that are too partisan, too focused on race, etc. Gerrymanders are said to be unconstitutional for many reasons-they dilute votes, they are anti-democratic, and they generate uncompetitive elections won by extremist candidates. Judges and scholars cite numerous clauses that gerrymanders supposedly violate- the Equal Protection Clause, the Guarantee Clause, and even the First Amendment. We dissent from this orthodoxy. Most of these claims rest on the notion that the Constitution establishes certain ideals about representation in legislatures and about the outcome and conduct of elections. …
Rethinking Drug Inadmissibility, Nancy Morawetz
Rethinking Drug Inadmissibility, Nancy Morawetz
William & Mary Law Review
Changes in federal statutory policy, state criminal justice laws, and federal enforcement initiatives have led to an inflexible and zero tolerance immigration policy with respect to minor drug use. This Article traces the evolution of the statutory scheme and how various provisions in state and federal law interact to create the current policy. It proceeds to investigate the broad reach of these rules if they are fully enforced, in light of the widespread lifetime experience with minor drug use both in the United States and abroad. Drawing on the experience of law enforcement agencies that have abandoned similarly rigid rules, …
All Bark And No Bite: A Modern Evidentiary Argument For The Retirement Of The Age-Old Pennsylvania Rule, Bin Wang
William & Mary Law Review
No abstract provided.
Religion At A Public University, Gerard V. Bradley
Religion At A Public University, Gerard V. Bradley
William & Mary Law Review
No abstract provided.
Imitation Is The Sincerest Form Of … Infringement?: Guitar Tabs, Fair Use, And The Internet, Jocelyn Kempema
Imitation Is The Sincerest Form Of … Infringement?: Guitar Tabs, Fair Use, And The Internet, Jocelyn Kempema
William & Mary Law Review
No abstract provided.
Renting The Good Life, Jim Hawkins
Renting The Good Life, Jim Hawkins
William & Mary Law Review
Academic literature and court decisions are replete with calls to ban or severely inhibit the rent-to-own industry. The argument is simple enough: Rent-to-own firms charge exorbitant prices to the most needy and vulnerable segments of society. The case for burdensome regulations, however, is much more difficult to make out than past scholarship has admitted. For the most part, academics have proceeded directly to proposing specific regulations for the industry without first carefully analyzing the rent-to-own business or the reasons for imposing drastic regulations. This Article examines the theoretical justifications for regulating the rent-to-own industry against the backdrop of interviews I …
Extraterritoriality In U.S. Patent Law, Timothy R. Holbrook
Extraterritoriality In U.S. Patent Law, Timothy R. Holbrook
William & Mary Law Review
Globalization has eroded traditional territorial limits on intellectual property laws. Although this pressure was first seen in trademark and copyright law, recent court decisions have demonstrated that the territorial lines of U.S. patents are also under assault. Indeed, the Supreme Court recently considered extraterritoriality in U.S. patent law in its 2007 decision in Microsoft Corp. v. AT&T Corp., discussed thoroughly in this Article. Courts and commentators have offered two primary approaches to deal with the issue of the extraterritorial reach of U.S. patents. First, many courts, including the Supreme Court, continue to adhere to a strict view of a patent's …
The Unrecognized Right Of Criminal Defendants To Admit Their Own Pretrial Statements, Stephen A. Saltzburg, Daniel J. Capra
The Unrecognized Right Of Criminal Defendants To Admit Their Own Pretrial Statements, Stephen A. Saltzburg, Daniel J. Capra
William & Mary Law Review
In Agard v. Portuondo, the United States Supreme Court held that a prosecutor did not violate a testifying defendant's constitutional rights by inviting the jury to infer from the defendant's presence at trial that the defendant altered his own version of events to accord with other witnesses' testimony. Justice Scalia's opinion for the Court emphasized that jurors might well draw the inference even without a prosecutor asking them to do so. Although Agard is viewed as giving an advantage in a criminal trial to the government, this Article considers how Agard might be used to allow defense counsel to introduce …
Law, Biology, And Property: A New Theory Of The Endowment Effect, Owen D. Jones, Sarah F. Brosnan
Law, Biology, And Property: A New Theory Of The Endowment Effect, Owen D. Jones, Sarah F. Brosnan
William & Mary Law Review
Recent work at the intersection of law and behavioral biology has suggested numerous contexts in which legal thinking could benefit by integrating knowledge from behavioral biology. In one of those contexts, behavioral biology may help to provide theoretical foundation for, and potentially increased predictive power concerning, various psychological traits relevant to law. This Article describes an experiment that explores that context. The paradoxical psychological bias known as the "endowment effect" puzzles economists, skews market behavior, impedes efficient exchange of goods and rights, and thereby poses important problems for law. Although the effect is known to vary widely, there are at …
Why Church And State Should Be Separate, Erwin Chemerinsky
Why Church And State Should Be Separate, Erwin Chemerinsky
William & Mary Law Review
No abstract provided.
Cartels, Agency Costs, And Finding Virtue In Faithless Agents, Christopher R. Leslie
Cartels, Agency Costs, And Finding Virtue In Faithless Agents, Christopher R. Leslie
William & Mary Law Review
Although price-fixing conspiracies are inherently unstable, many cartels manage to endure, often for long periods. Many successful cartels have hierarchical structures made up of high-level executives (principals) and lower-level managers (agents). For these cartels, agency cost theory could provide some insights as to how to destabilize them from within. Agency costs exist when a faithless agent pursues her own interests instead of those of the principal. Although agency costs are generally considered inefficient, when the principal's goals are undesirable, the acts of a faithless agent can be beneficial. Because one traditional approach to reducing agency costs is to align the …
Should States Have Greater Standing Rights Than Ordinary Citizens?: Massachusetts V. Epa's New Standing Test For States, Bradford Mank
Should States Have Greater Standing Rights Than Ordinary Citizens?: Massachusetts V. Epa's New Standing Test For States, Bradford Mank
William & Mary Law Review
In Massachusetts v. EPA, the Supreme Court for the first time clearly gave greater standing rights to states than ordinary citizens. The Court, however, failed to explain to what extent or when states are entitled to more lenient standing. This Article concludes that the Court has historically given states preferential status in federal courts when a state files a parens patriae suit based on the state's quasi-sovereign interest in the health and welfare of its citizens or the natural resources of its inhabitants and territory. A quasi-sovereign interest is inherently less concrete and particularized than the types of injuries that …
Political Judges And Popular Justice: A Conservative Victory Or A Conservative Dilemma?, George D. Brown
Political Judges And Popular Justice: A Conservative Victory Or A Conservative Dilemma?, George D. Brown
William & Mary Law Review
Most of the judges in America are elected. Yet the institution of the elected judiciary is in trouble, perhaps in crisis. The pressures of campaigning, particularly raising money, have produced an intensity of electioneering that many observers see as damaging to the institution itself. In an extraordinary development, four justices of the Supreme Court recently expressed concern over possible loss of trust in state judicial systems. Yet mechanisms that states have put in place to strike a balance between the accountability values of an elected judiciary and rule of law values of unbiased adjudication are increasingly invalidated by the federal …
Of State Laboratories And Legislative Alloys: How "Fair Share" Laws Can Be Written To Avoid Erisa Preemption And Influence Private Sector Health Care Reform In America, Darren Abernethy
William & Mary Law Review
No abstract provided.