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Introducing the West Virginia Law Review Online

As the only law review in our state, the West Virginia Law Review takes seriously its obligation to serve both academia and our state’s legal community. We serve those interests by publishing articles that are nationally relevant along with articles that address issues in West Virginia. Historically, this Law Review has published special issues such as the National Coal Issue and the Energy and Sustainability Issue, reflecting the unquestioned importance of those areas of law to our state. However, we recognize that our state’s legal community is well-served by academic analysis of all areas of law. We also recognize that research specific to West Virginia can be difficult to find through major commercial avenues. As such, Volume 117 of the West Virginia Law Review is proud to launch the West Virginia Law Review Online.

An Argument For Use of Stock Options with Forfeiture Clauses for Breach of Duty of Loyalty

An employer’s various (and self-serving) policy reasons for requiring employees to enter into a covenant not to compete (“CNC”) 1 are considerable: to protect research and development assets; to create a return on the investment in human capital; to enhance market growth; to capture entrepreneurial initiatives for the employer; and to prevent mobility of employees or gravitation toward a competitor. 2 The successful enforcement of CNCs (or at least the perception that such successful enforcement is possible) has caused such agreements to proliferate. The CNC is no longer solely for highly-compensated employees but also for the lowly compensated. For example, one non-compete agreement (which must be signed by all new Jimmy John’s employees) states:

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Still Laying Claim: An Update to Developments in Will Contest Litigation in West Virginia

Family disputes over inheritance date back at least as early as Biblical times, when the younger brother Jacob, by use of deception, received the inheritance from his father Abraham over his elder brother Esau.1 Probate litigation, which is commonly known as the “will contest,” has changed, albeit slowly, in both ancient and modern times. It has been rightfully observed that “this area of practice is a melting pot of presumptions, exceptions, threshold hurdles, capacity qualms, evidentiary issues, strategic clauses, and countless other headache-inducing legal issues—yet attorneys must diligently juggle all of them while also maintaining their clients’ confidence and trust.”2

Since the publication of the authors’ original law review article, Laying Claim: A Practitioner’s Guide to Will Contests in West Virginia,3 in 1993, several noteworthy statutory enactments and judicial decisions have occurred which affect this important area of law. In this article, the authors wish to supplement and update their original article in order to advise practitioners of developments in the probate arena and to make academic commentary on them.

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The Gist of the Action Doctrine: Lessons from Pennsylvania's Search for Cause of Action Essences

Consider the following scenario. A homeowner hires a pest-control contractor to spray a gallon of pesticide around the outside of the homeowner’s house. The homeowner signs a contract provided by the contractor which requires the contractor to apply the pesticide in a manner consistent with the pesticide’s labelling. However, instead of spraying one gallon of pesticide around the outside the house, the contractor inexplicably (and contrary to the labelling) sprays 500 gallons of highly toxic pesticide inside the house, causing a fire that destroys the house. The homeowner sues the contractor for the negligence of his work only to lose at summary judgment because the court held that “the gist of the action” was really a breach of the contract that the homeowner signed, not a negligence claim (despite the homeowner’s protests to the contrary). Perhaps the homeowner can recover some measure of the money he paid for the contracting services due to the contractor’s breach of his promise to apply pesticide in a proper manner, but he can recover nothing for his destroyed house.

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