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How Justice Holmes Turned Conspirators into Partners
Full text linkA fundamental precept of the law of conspiracy is that all members of a conspiracy are partners in crime. This precept is the rationale for many doctrines of conspiracy law, including the controversial judge-made rule that all members of a conspiracy are vicariously guilty of substantive crimes foreseeably committed by one member of the conspiracy even if the other members did not commit the substantive offense, intend the offense, or aid or abet its commission. Why does the law impose partnership status and vicarious guilt on lower-level members of a conspiracy who have no ownership stake in the business and no management responsibilities? When and how did the law come to say that all conspirators are partners?
To answer these questions, this Article examines the history of the notion that conspirators are partners in crime. The Article finds that, while conspirators bore some mutual responsibility in the nineteenth century, the notion that conspirators are partners in crime was invented by the Supreme Court in the first half of the twentieth century to justify expansion of conspiracy liability and the lifting of traditional restrictions on conspiracy prosecutions. After the notion was established, it became a general rationale for conspiracy law, including for doctrines that predated the idea. The story illustrates how the concept of agency, a key concept in the regulation of business organizations, has been expanded through analogy and metaphor in modern times to meet perceived social needs
Shaq, \u3cem\u3eRipple\u3c/em\u3e, and the Future of Crypto Regulation
Full text linkCrypto is at a regulatory crossroads. The Securities and Exchange Commission (SEC) and other regulators have taken a hard line on enforcing traditional regulatory requirements that would severely limit crypto offering activities. At the same time, crypto advocates seek preferential treatment, under the guise of “regulatory clarity,” that would allow them to bypass much of the applicable regulatory regimes. After a halt to legislative activities, brought on by the FTX implosion and ensuing crypto winter, the battle for crypto’s future is currently in the courts. Two pending, bellwether cases—the class action against Shaquille O’Neal and other celebrity spokesmen for FTX, and the SEC’s protracted Ripple Labs litigation—illustrate the following claims about crypto and financial regulation: (1) Crypto’s attempts to access broad public markets are incompatible with the existing financial regulatory framework, which either prohibits access to public markets (as for securities) or requires alternative regulatory oversight (such as substantive prudential banking regulation). (2) Calls for “clarity” regarding crypto regulation are disingenuous in that crypto investments, with quite limited exceptions, are clearly prohibited from public trading under existing regulatory frameworks. Rather, calls for clarity are actually seeking more lenient treatment than exists for comparable assets. (3) Because crypto innovations are minimal and largely reinvent the wheel of traditional back-office financial plumbing, any privileges granted to crypto may lead to massive regulatory arbitrage. Virtually any traditional financial function—fundraising, brokerage, banking—can be recast as blockchain-based with minimal functional changes for the end-user. (4) Whether the current regime—which prohibits public access for most unlicensed investment products—is desirable from the standpoint of economic efficiency is debatable. However, to date, there is little reason to treat crypto offerings differently than other passive investments, as crypto assets suffer from significant informational asymmetry and are subject to manipulation and related-party transactions. Decentralization and deconstruction of crypto financial functions is largely endogenous (and provides limited, if any, efficiency gains), such that crypto’s purported inability to comply with existing regulation is a choice that can be exploited for regulatory arbitrage
Executive Watch: Trump\u27s Weaponization of Civil Lawsuits
Full text linkThis post focuses on civil suits by government figures, mainly by the sitting president. It comes at a time when the legitimacy of the New York Times v. Sullivan case is being challenged, and while efforts to establish a national anti-SLAPP law are being thwarted
Encouraging Expanded Producer Responsibility in Agricultural Labor Relations
No full textOver two million farmworkers provide essential support to the country’s food system. As detailed below, their current working conditions, living conditions, and legal protections do not reflect the importance of their contributions. As regulations and enforcement have fallen short in securing their rights and economic position, public incentive schemes can encourage improvements and equip grower-employers to reverse the race to the bottom and instead become leaders in providing dignified work opportunities. This Article looks at recent attempts and opportunities to leverage federal policies and programs to incentivize this type of leadership. It proposes that the U.S. Department of Agriculture (USDA) should administer these incentives, aligning with the Department’s mission and building upon its current grants, subsidies, procurement activities, and other farmer-directed programs. While not a substitute for much needed improvements to legal protections, incentives can promote better standards for U.S. agricultural work, help employers become “employers of choice,” and strengthen the leadership of U.S. growers
Ingrid Hillinger: Women on the Faculty
No full text[I]t was very difficult to be a woman, a young woman, probably anywhere, but certainly Williamsburg... There was blood everywhere in my classroom. I didn’t know what I was doing. It could be really hard. I have a lot of scars. I shed a lot of tears... And at one point Toni [Massaro] took me aside and said, This is not working. And Toni wanted women to succeed. She wanted me to succeed. And so, she told me what to do... And that was a pivotal moment in my teaching career. And that was true of almost all the women at William & Mary. They wanted us to succeed. I attribute the women and my colleagues to getting that. Getting tenure.” -- Ingrid Hillinger, Class of 1976 and Former Faculty, on being a woman on the faculty in the 1980s
“The Faculty.” Admissions Brochure, 1987-1988. Wolf Law Library Archives, LSA.1978.001
Ingrid Hillinger (pictured center left) began teaching in 1977. She became, along with Lynda Butler, one of the first two women to be granted tenure at William & Mary Law School. The flexibility of her teaching schedule allowed Hillinger to balance her work life with her home life as a mother of three children and she welcomed the opportunity to live in “two worlds.” At the time this photo was taken, Hillinger was one of six women among the full-time faculty. Now, in 2024, 21 of the 44 full-time faculty at the Law School are women.
Listen to Ingrid Hillinger\u27s oral history online.https://scholarship.law.wm.edu/oralhist-exhibit/1015/thumbnail.jp
Stephanie Chu: Summer in Madrid
No full text“Professor Williams hired me to be the assistant in the Summer in Madrid program for the law school. I don\u27t know if it\u27s even still around, but it was a-- there were two choices. You could study abroad in Madrid or in London. And because they were sending faculty members over who didn\u27t necessarily speak Spanish, they would hire two students who did speak Spanish fluently to be the program assistants… And it was another opportunity to be kind of in an administrative role with students. At this point, it was peers, but that also played into my long-term career desires and career growth.” -- Stephanie Chu, Class of 1992, on working for the Summer in Madrid program
Summer in Madrid t-shirt. Date unknown. Courtesy, Wolf Law Library Administration.
Beginning in the 1980s, William & Mary Law School students had the option to participate in international summer programs in places like Madrid. Members of the faculty would teach for-credit courses and hire students like Stephanie Chu, fluent in Spanish, to help with the logistics of travel and lodging. Chu described this summer job as an early opportunity to explore what ultimately became her career – an administrative role helping students. The Summer in Madrid program was eventually overseen by the Wolf Law Library, with members of its staff acting as directors and coordinators until its last session in 2016.
Listen to Stephanie Chu\u27s oral history online.https://scholarship.law.wm.edu/oralhist-exhibit/1014/thumbnail.jp
Mark Earley: Joining the Virginia Senate
No full textWell, when I arrived, because there had never been nine Republicans before, somebody on the Democratic side was going to have to move from their seat, move over one, shift to the right. And apparently no one wanted to give up their seat... [The Senate clerk] walked me around to the Democratic side of the aisle all the way to the very end on the back row in the back corner... And to be honest with you, it probably turned out to be the best thing that could have happened to me as a freshman senator because the place was run by Democrats. I sat with them. Half the time, they forgot I was a Republican. So I got more bills passed as a freshman Republican senator than anybody else did.” -- Mark Earley, Class of 1982, on joining the Virginia Senate
Dementi-Foster, photographer. The Senate of Virginia, 1988. Courtesy, Library of Virginia.
Mark Earley (top row, second from right) joined the Virginia Senate in 1988. Virginia’s ‘citizen legislature’ was designed from its beginning to be a part-time legislative body, meeting no more than 60 days in any given year. This allows its members to hold other jobs and to remain actively involved in their districts while writing the laws that impact those communities. Earley continued to work as an attorney during his ten years in the Senate and was able to bring his family with him to Richmond during the annual legislative session from January to March. He left the Senate in 1997 to become Attorney General of Virginia.
Listen to Mark Earley\u27s oral history online.https://scholarship.law.wm.edu/oralhist-exhibit/1008/thumbnail.jp
Jeff Jefferson: From Vietnam to Law School
No full text“And believe it or not, literally six days before I was sitting in my first class, I was in Vietnam… I, all the military guys, we sat in the front row because we knew if you want to get something done, don\u27t sit in the back. And we -- don\u27t forget, most of the guys are getting there at age 22 and we\u27re age 26, 27 when we get there because we\u27ve been in the Army four or five years. Okay. So we\u27re older guys and we don\u27t have time to be playing around in the back of the class. We all sat in the front row.” -- Jeff Jefferson, Class of 1972, on transitioning from the military to law school
Rochelle, Shernita. “Law School Ranks High with Military Alumni.” William & Mary Lawyer, 1996, p.15. Wolf Law Library Archives, LSA.1983.001
W.C. Jefferson completed his second tour in Vietnam in 1969, then started at William & Mary Law School a week later. He described his and his fellow veterans’ approach to law school as distinct from that of the other students due to their military experience – they did not take their legal education lightly. William & Mary Law School is no stranger to active and veteran members of the military. With a renowned Veterans Benefits Clinic and a local community filled with military families, the Law School is often pursuing partnerships such as the one described here.
Listen to Jeff Jefferson\u27s oral history online.https://scholarship.law.wm.edu/oralhist-exhibit/1004/thumbnail.jp