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William & Mary Business Law Review: Oustanding Member Award
No full texthttps://scholarship.law.wm.edu/studentplaques/1120/thumbnail.jp
William and Mary Law Review Best Note Award
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Canada\u27s Open Work Permit for H-1B Visa Holders: Canadian Opportunism and a Broken American System
Full text linkA new Canadian working permit has been created by the Trudeau government to the detriment of American business and macroeconomic prospects. In the context of labor shortages and a quickly changing American workplace, this Note will forward the findings of governments as well as legal and economic scholars on the benefits of skilled immigrant participation in the American economy. Five options for an American response to this Canadian permit (and for reform to American employment-based immigration generally) will then be presented
2025: Paul Clement and Donald B. Verrilli, Jr.
No full textPaul Clement and Don Verrilli with Dean Spencer.
Photos by David F. Morrillhttps://scholarship.law.wm.edu/mwmedallion/1056/thumbnail.jp
Restructuring Ruritania: Bankruptcy, Sovereign Debt, and the Equity Receivership
Full text linkThe traditional legal story of sovereign restructuring goes something like this: foreign governments cannot file for bankruptcy under domestic law. When faced with the need to restructure unsustainable debts, they must negotiate with each of their creditors. Since the late 1980s, private debt has been held by increasingly diverse and dispersed bondholders, making renegotiation more difficult. Defaulting debtors face two basic problems: first, they have no process analogous to the automatic stay in bankruptcy, which can pause litigation by creditors and buy time for an orderly reorganization; second, and more importantly, they have no process analogous to the cramdown provisions of Chapter 11, whereby new terms can be imposed on non-consenting creditors. As a result, sovereign reorganizations are at the mercy of holdout creditors, who can extract concessions at the expense of other creditors. This creates economic uncertainty with attendant lower growth rates and ultimately imposes additional hardship on the sovereign’s taxpayers. This Article argues against the conventional wisdom, showing how it is possible for a sovereign debtor to use existing law to stay pending or future litigation, and impose new terms on holdout creditors. This can be done with the venerable equity receivership, a legal device used to reorganize corporate debtors prior to the adoption of the first modern Bankruptcy Code in the 1930s. In effect, sovereign debtors can be treated like a nineteenth-century railroad in need of reorganization. To be sure, this procedure would reach only American law-governed debt, but the ability of sovereigns to resolve the holdout problem for all their dollar-denominated debt could dramatically simplify restructurings. Even if finance ministries are hesitant to avail themselves of such a novel and untested legal theory, the possibility of being able to cram down new terms against holdout creditors may ease the process of negotiated restructurings
The Nuts and Bolts of Amending the Constitution: The Recent Equal Rights Amendment Ratification Debate
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Procedural Political Economy
Full text linkWhen the Federal Rules of Civil Procedure came into being in 1938, a broad political economy discourse was driving significant legal and policy reform efforts. Legal scholars, economists, political leaders, and others placed questions of economic power and their relationship to democracy at the center of those reform efforts, honing and developing a political economy tradition that is a forebearer to today’s law-and-political economy (LPE) approach. Both then and today, the relationship of civil procedure to these trends has not been fully mined. This Article tells a vital part of that story, tracing the federal civil procedure system’s political economy story from its modern origins through the present day, analyzing how procedure has been oriented around and away from the questions that center in political economy analysis.
Three strands have characterized the field during this period—a progressive political economy strand, a neutrality strand, and a neoliberal strand. The progressive political economy strand was prominent at the turn of the twentieth century as a broad array of lawyers explored how procedure was implicated in ongoing economic power struggles over the rights of workers and corporations and their relationship to democratic ordering. The strand, however, would soon fade as neutrality came to prominence with the rise of the Federal Rules of Civil Procedure in 1938. While the Federal Rules were in part New Deal achievements, founded in faith in expertise and the ability of government to solve problems, the reformers behind the rise of the modern procedural regime viewed procedure as a domain separate from substantive policy-making and the political economy concerns increasingly characterizing it. Questions of economic power largely receded from view as procedure-making was seen as a value-neutral science best effectuated by experts laboring outside politics. The commitment to neutrality characterized the civil rules system for some time—and, in some ways, still does today. But the commitment came under pressure as litigation rates grew with legislatures creating more rights of action to enforce regulatory policies and related developments evinced the connection between procedure and policy implementation. The procedural regime thus came to be viewed as being in a state of crisis. This crisis helped lay the groundwork for a final shift in procedure—a neoliberal shift— with judges using procedural interpretation to undermine the litigation system and its regulatory functions, focusing on efficiency and minimizing further considerations of power and democracy, thereby renovating the neoclassical traditions and approaches to political economy that New Deal reformers had resisted.
This Article’s account bears implications for civil procedure and LPE. The history clarifies procedure’s modern roots, the functions and limits of neutrality, and the complicated relationship between neutrality and neoliberalism. And it shows how important procedure is to the questions LPE scholars consider and how distanced it is from the reorientations they seek. To close the gap, this Article begins to sketch out the pieces that might together form a reinvigorated view of procedural political economy
Clarifying \u3cem\u3eParens Patriae\u3c/em\u3e
Full text linkThroughout the Anglo-American legal world, the state claims an authority, termed parens patriae, to exert control over the lives of nonautonomous persons in ways it does not presume to control autonomous persons. Philosophers have given little attention to when and how that authority should be exercised, yet there is disagreement or confusion about this among courts and legal scholars. This article examines how parens patriae differs from other government roles, identifies which conceptions of the parens patriae role are coherent, and then presents a normative case for adopting a conception of the role as that of fiduciary for nonautonomous individuals, subject to a duty of undivided loyalty. The implications of adopting this conception are dramatic
Voter F̶r̶a̶u̶d̶ Mistake
No full textFalse narratives challenging electoral integrity often cite ineligible voting as a prime example of so-called widespread voter fraud. This Article demonstrates that ineligible voting often consists of mistakes that are problematically treated like fraud. Some jurisdictions criminalize ineligible voting on a strict liability basis, imposing punishment even when the ineligible voter is unaware of her ineligibility. When jurisdictions impose this strict criminal liability, mistakes are often misunderstood or misrepresented as fraud. This harsh and confused treatment of voter mistake undermines the criminal justice system by severing criminality from culpability, punishing good faith democratic participation, targeting marginalized populations, and amplifying systemic bias. It also undermines American democracy by chilling eligible voting, needlessly undermining electoral confidence, justifying unnecessary electoral burdens, and allocating the burdens and risks of eligibility determinations away from the election officials best positioned to assume them. Courts should address the strict criminalization of voter mistake by applying the presumption of scienter and recognizing a constitutional mens rea requirement. States should amend their laws to condition criminal liability on knowledge of ineligibility. Congress should similarly amend federal criminal and immigration laws and pre-empt state laws that impose strict criminal liability. The Help America Vote Act should be clarified (through judicial elaboration or legislative amendment) to make a provisional ballot a true safe harbor for people unsure of their eligibility to vote. Prosecutors should refuse to pursue voter mistake cases. And all of us—including media, scholars, advocates, lawyers, judges, and politicians—must replace the current conflation of voter mistake and voter fraud with a more accurate public discourse that carefully distinguishes between fraud and mistake