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Strategically Restated Defaults
Full text linkBusiness and commercial statutes are composed almost entirely of default rules, which parties may override via agreement or adopt via silence. Drafters of these statutes, and theories about the substance of default rules, assume that parties indeed adopt statutory default rules via silence.
Against this backdrop, this Article examines unexpected behavior by parties to business and commercial agreements: parties often restate statutory default rules in their agreements rather than adopting those rules via silence. Based on a review of actual limited partnership agreements and security agreements, this Article identifies five unique species of restatement—bald, tweak, refill, baseline, and context restatements—and provides examples of each.
This Article considers the implications of this unexpected behavior. First, this Article analyzes the strategic reasons that parties restate statutory defaults in their business and commercial agreements rather than adopting those rules via silence. Second, this Article argues that a restated statutory default should be interpreted identically to the restated statute, contrary to the Delaware Supreme Court’s holding in Murfey v. WHC Ventures, LLC, 236 A.3d 337 (Del. 2020). Finally, this Article considers how the theories of statutory defaults should be adapted in recognition of the strategic reasons that parties restate statutory defaults in their agreements
Can You Take Me Higher? How the Big Three Benefit from the Dominance of Index Providers
Full text linkThe entrenched and highly profitable business of licensing indices for passive management is puzzling. The largest equity indices, like the S&P 500 and FTSE Russell 1000, are merely market-capitalization-weighted portfolios without meaningful creative input. The largest passive fund managers could offer and promote “private label” market-capitalization-weighted funds at lower cost—certainly zero and possibly with a basis point or two rebate—at a huge savings for end-investors.
I explore a plausible explanation for the strange dominance of index providers. I explain how index providers are akin to a “hub” in a hub-and-spoke relationship that facilitates a form of price-fixing in the market for fund management. Index providers allow passive fund managers to keep the prices of their passive offerings higher than they otherwise would be in private label competition. This benefits the largest passive fund managers because they also sell much more lucrative actively managed products. Index fees that are passed on to end-investors make those actively managed products look relatively better than they otherwise would, while providing hundreds of millions of dollars in licensing fees annually to index providers for a product that has no marginal value over the freely available strategy of constructing a private label market-capitalization-weighted portfolio.
Because passive fund managers and index providers can operate in the open, their conduct need not involve any illegal behavior. Rather, each large passive fund manager can enter into independent agreements with index providers to the detriment of passive investors without actually forming a horizontal agreement to do so, leaving their conduct (absent more) completely legal but to the detriment of investors who, by virtue of the already low cost of passive fund management, do not even realize that they are overpaying
The Enlightenment in Early America
Full text linkThe founding of the United States of America is often said to have been the product of Enlightenment ideals that emphasized reason, individual liberty, and notions of progress. During this same era, however, racially based slavery, which confounded reason, denied individual liberty to millions, and challenged ideas about progress, existed in all of the colonies of North America.
The third president of the United States, Thomas Jefferson, embodied this seeming contradiction at the heart of the American founding. The principal author of the American Declaration of Independence enslaved hundreds of people over the course of his long life.
This Article argues that a bedrock verity of the Enlightenment influenced Jefferson’s thinking on these matters, specifically the tendency to emphasize the importance of categories. In the world of Enlightened science, everything had a place—scientific phenomena, plants, ideas, even people. In this view, human beings of African descent were placed at the bottom of what was seen as inevitable hierarchy, justifying treating them as an exception to the rules about the natural liberty of mankind. Whether this circumstance would continue indefinitely was an open question, though Jefferson posited that time might ameliorate the situation. As scholars have noted, there was a dark side to Enlightenment thinking
Workplace Dignity
Full text linkThere is a fundamental lack of respect for workers and work. The evisceration of the dignity of work has infected all industries. Anecdotally, workers have been forced to urinate in bottles. Employees have been killed while working through a tornado. A well-known employer allegedly subjected women to jokes of “sex, defecation, masturbation, rape, and torture.” Empirically, studies demonstrate the persistence of gender harassment in employment, the mistreatment of workers with long COVID, and a wide range of child labor and safety violations. No group is immune from the abuse that has been devastating to minority workers and vulnerable populations.
This Article provides a framework to help restore workplace dignity. It proposes the adoption of the “immutable workplace norms” doctrine. Through corporate action, criminalization of employer misconduct, and judicial intervention, this doctrine provides a path to address workplace abuse. The proposal offered here, situated within the existing academic scholarship, will help to restore the much-needed dignity of work
A Comparative Financial Analysis of Louisiana\u27s Land-Grant Universities: The Morrill Acts and \u3cem\u3eBrown\u3c/em\u3e Revisited
Full text linkDespite a federal legislative mandate on states to support land-grant HBCUs in a fair and equitable fashion, the funding disparities [between land-grant Historically Black Colleges and Universities (HBCUs) and non-HBCU land-grant universities] accrued for decades and ostensibly for more than a century. Our purpose in this review is to explain the history, nature, and scope of this funding disparity. We are particularly interested in how Brown v. Board of Education (Brown I and Brown II) and related litigation and desegregation policy shaped this history. To narrow the scope of the review, we localize the problem to Louisiana. A state perspective is important as higher education desegregation plans and political decisions related to university funding appropriations are state specific.
This abstract has been taken from the authors\u27 introduction
Taking Back the Takings Clause: The Case for Compensating Innocent Property Owners Caught in the Crossfire of Police Activity
Full text linkPart I of this Note will provide an overview of the history of the Takings Clause, the role of the police power in takings jurisprudence, and the necessity exception to takings. Specifically, Part I will demonstrate that (1) the gravity of physical government intrusions has led the Supreme Court to consistently treat such intrusions as per se takings, (2) any distinction between eminent domain and the police power exists in the context of regulatory takings, and (3) the necessity exception rests on a shaky foundation as a common law tort doctrine. Part II will refute Lech’s conclusion that law enforcement destruction falls within a categorical police power exception to takings liability. Specifically, Part II will demonstrate that no categorical exception exists, and even assuming such an exception did exist, it has no place in a case involving physical destruction of an innocent owner’s property. Finally, Part III will explain how Baker’s alternative approach—the necessity exception—is similarly unconvincing, given its direct incongruity with the purpose of the Takings Clause and its basis in mass public emergencies like war, where destruction was inevitable, not small-scale emergencies like those in Lech and Baker, where destruction was avoidable.
This abstract has been taken from the author\u27s introduction
Decolonizing the Museum: Improving Transparency of Colonial Era Art in Museum Collections
Full text linkThis Note argues that the current standards regarding the display of colonial era artwork must be addressed through a new form of oversight and enforcement. In order to understand why the law and policies surrounding museums’ duties should change, it is important to first understand the existing frameworks that guide the choices museums make today. Part I of this Note provides the relevant background, first taking a brief look at the impact of the Nazis on the art world and addressing some of the leading guidelines and legislation about provenance research and restitution claims for Nazi-looted art. Part I then discusses additional background on the current ethical guidelines for museums from three leading organizations.
Part II ... helps illustrate why a strictly legal model that mandates what information is displayed alongside art is not the best solution to creating more transparency in museums. Part III then proposes a regulatory and oversight solution to ensure better museum practices, followed by a more practical ethical model that museums can adhere to. This model specifically addresses alternative actions museums can take, including what museums should share with the public, and what terminology is recommended. This model draws on the existing framework for Nazi-looted art, but it notes the additional intricacies of colonial era art in museums and how those differences call for additional measures by museums. Ultimately, the solution asks museums to engage with their imperialist background by sharing more complete histories with the public and inviting historically excluded voices to shape the future of the institutions.
This abstract has been taken from the author\u27s introduction
An Interview with Gloria Todd
No full textThe paperwork and the different percentages that you have to get in order to get your full benefits were very challenging. He was just about to give up when this clinic [Veterans Benefits Clinic] was developed... So if it wasn\u27t for Stacey-Rae, he probably wouldn\u27t have been around as long as he did. So, yeah. Changed our lives, actually. -- Gloria Todd, on her husband as the clinic\u27s first client
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In this oral history, dated February 26, 2025, Gloria Todd gives us an overview of her 34 years of service at William & Mary Law School. The subjects range from a day in her life as the law school’s office manager, her husband Gene’s experience as the Puller Veterans Benefits Clinic’s first client, and how Todd helped students evacuate during a fire at the law school in 2016. We hear anecdotes about Todd’s peers in the administration and learn how processes like administering exams and processing human resources changed at the law school over the years. Throughout the interview, Todd emphasizes her passion for working with students—from the day of their first exam to the day of their commencement ceremony.https://scholarship.law.wm.edu/oralhist_all/1017/thumbnail.jp