Benjamin M. Flowers, Citation: 74 Wash. & Lee L. Rev. Online 248 (2018)
The constitutional-doubt canon instructs that statutes should be interpreted in a way that avoids placing their constitutionality in doubt. This canon is often said to rest on the presumption that Congress does not intend to exceed its constitutional authority. That presumption, however, is inconsistent with the notion that government actors tend to exceed their lawful […]
Wendy Gerwick Couture, Citation: 74 Wash. & Lee L. Rev. Online 234 (2018)
In Securities Regulation in Virtual Space, Eric. C. Chaffee explores the potential applicability of the securities laws to virtual transactions based on virtual activity and argues that, although many of these transactions likely qualify as “investment contracts” under S.E.C. v. W.J. Howey Co., they should be excluded under the context clause because, among other reasons, […]
Michael F. Dearington, Citation: 74 Wash. & Lee L. Rev. Online 204 (2017)
Last year, the United States Supreme Court decided a Hobbs Act conspiracy case that could significantly expand the bounds of the general federal conspiracy statute. In Ocasio v. United States, 136 S. Ct. 1423 (2016), the Court held that, under “age-old principles of conspiracy law,” a police officer could conspire with shop owners to extort […]
Matthew C. Donahue, Citation: 74 Wash. & Lee L. Rev. Online 146 (2017)
Peter T. Thomas, Citation: 74 Wash. & Lee L. Rev. Online 215 (2017).
Kevin Barry & Bharat Malkani, Citation: Kevin Barry & Bharat Malkani, The Death Penalty's Darkside: A Response to Phyllis Goldfarb's Matters of Strata: Race, Gender, and Class Structures in Capital Cases, 74 Wash. & Lee L. Rev. Online 184 (2017), http://scholarlycommons.law.wlu.edu/wlulr-online/vol74/iss1/9.
In Matters of Strata: Race, Gender, and Class Structures in Capital Cases, Professor Phyllis Goldfarb examines the ways in which race, class, and gender affect the American criminal justice system generally, and its death penalty system in particular. This Response focuses on one of Goldfarb’s observations: The relationship between slavery and the death penalty. This […]
Spencer T. Wiles, Citation: 74 Wash. & Lee L. Rev. Online 103 (2017).
Danielle Weatherby, Terri Day, Citation: 74 Wash. & Lee L. Rev. Online 86 (2017)
Next term, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court will consider whether a baker’s religious objection to same-sex marriage justifies his violation of Colorado’s public accommodation law in refusing to bake a cake for a same-sex wedding. At the centerpiece of Masterpiece Cakeshop is a clash between the First Amendment’s Free […]
Carl Tobias, Citation: Carl Tobias, Nominate Judge Koh to the Ninth Circuit Again, 74 Wash. & Lee L. Rev. Online 64 (2017).
During February 2016, President Barack Obama nominated United States District Judge Lucy Haeran Koh to a “judicial emergency” vacancy on the United States Court of Appeals for the Ninth Circuit. She has capably served over multiple years in the Northern District of California competently deciding numerous high-profile lawsuits, specifically regarding intellectual property. Accordingly, the President’s […]
Elayne E. Greenberg, Citation: 74 Wash. & Lee L. Rev. Online 47 (2017)
The Online Journal requested that I evaluate Professor Strong’s empirical research, “Realizing Rationality: An Empirical Assessment of International Commercial Mediation,” reported in 23 Wash. & Lee. L. Rev. 1973 (2016). The purpose of Professor Strong’s research is to help “fill the informational gap” about international commercial mediation for the United Nations Commission on International Trade […]
Edward D. Cavanagh, Citation: Edward D. Cavanagh, Mandating Rule 11 Sanctions? Here We Go Again!, 74 Wash. & Lee L. Rev. Online 31 (2017)
The House of Representatives has passed H.R. 720, a bill that would amend Rule 11 of the Federal Rules of Civil Procedure by re‑instituting mandatory sanctions for Rule 11 violations and essentially restoring Rule 11 to its contents under the 1983 amendments to the Federal Rules of Civil Procedure. The legislation would mandate imposition of […]
Johanna Bond, Citation: Johanna Bond, Zika, Feminism, and the Failures of Health Policy, 73 Wash. & Lee L. Rev. Online 841 (2017)
The Zika epidemic caused serious concerns about fetal health throughout Latin America and some southern states in the United States. The prevailing governmental response throughout the region continues to emphasize two disease control factors: pregnancy delay and mosquito abatement. This essay argues that the current health policy approach of the World Health Organization, the Centers […]
Carl Tobias, Citation: 74 Wash. & Lee L. Rev. Online 9 (2017)
Now that President Donald Trump has commenced the fifth month of his administration, federal courts experience 121 circuit and district court vacancies. These statistics indicate that Mr. Trump has a valuable opportunity to approve more judges than any new President. The protracted open judgeships detrimentally affect people and businesses engaged in federal court litigation, because […]
Joan MacLeod Heminway, Citation: 73 Wash. & Lee L. Rev. Online 829 (2017)
Frederick E. Vars, Citation: 74 Wash. & Lee L. Rev. Online 1 (2017)
The Supreme Court recently heard the case of an Alabama death row inmate, James McWilliams. A thus far overlooked argument could save his life and help level the playing field in other capital cases. The Court in 1985 promised independent expertise. Now is its chance to make good on that promise.
Jeremy Berkowitz, Michael Mangold & Stephen Sharon, Citation: Jeremy Berkowitz, Michael Mangold & Stephen Sharon, Data Flow Maps—Increasing Data Processing Transparency and Privacy Compliance in the Enterprise, 73 Wash. & Lee L. Rev. Online 802 (2017)
In recent years, well-known cyber breaches have placed growing pressure on organizations to implement proper privacy and data protection standards. Attacks involving the theft of employee and customer personal information have damaged the reputations of well-known brands, resulting in significant financial costs. As a result, governments across the globe are actively examining and strengthening laws […]
Carl Tobias, Citation: Carl Tobias, Combating the Ninth Circuit Judicial Vacancy Crisis, 73 Wash. & Lee L. Rev. Online 687 (2017)
When Donald Trump became President, the United States Court of Appeals for the Ninth Circuit had four judicial vacancies that the Administrative Office of the U.S. Courts (AO) identified as “judicial emergencies.” The court also faces a larger caseload than all the other regional circuits, and has frequently decided appeals the least swiftly. The 2016 […]
Thomas Berry, Citation: Thomas Berry, Explaining the Persistence of the “Ample Alternative Channels” Test, 73 Wash. & Lee L. Rev. Online 786 (2017)
Chetan Gupta, Citation: Chetan Gupta, The Market’s Law of Privacy: Case Studies in Privacy/Security Adoption, 73 Wash. & Lee L. Rev. Online 756 (2017)
This paper examines the hypothesis that it may be possible for individual actors in a marketplace to drive the adoption of particular privacy and security standards. It aims to explore the diffusion of privacy and security technologies in the marketplace. Using HTTPS, Two-Factor Authentication, and End-to-End Encryption as case studies, it tries to ascertain which […]
Ivan L. Sucharski & Philip Fabinger, Citation: Ivan L. Sucharski & Philip Fabinger, Privacy in the Age of Autonomous Vehicles, 73 Wash. & Lee L. Rev. Online 724 (2017)
To prepare for the age of the intelligent, highly connected, and autonomous vehicle, a new approach to concepts of granting consent, managing privacy, and dealing with the need to interact quickly and meaningfully is needed. Additionally, in an environment where personal data is rapidly shared with a multitude of independent parties, there exists a need […]
Susan McCarter, Elisa Chinn-Gary, Louis A. Trosch Jr., Ahmed Toure, Abraham Alsaeedi, Jennifer Harrington, Citation: Susan McCarter et al., Bringing Racial Justice to the Courtroom and Community: Race Matters for Juvenile Justice and the Charlotte Model, 73 Wash. & Lee L. Rev. Online 641 (2017)
This article describes regional institutional organizing efforts to bring racial justice to the Charlotte courts and community through a collaborative called Race Matters for Juvenile Justice (RMJJ). The authors explain community and institutional organizing in-depth using the example of minority overrepresentation in the juvenile justice system, but recognize the pervasiveness of racial and ethnic disparities. […]
Andrew F. Tuch, Citation: Andrew F. Tuch, The Limits of Gatekeeper Liability, 73 Wash. & Lee L. Rev. Online 619 (2017)
Paul Rosenzweig, Citation: Paul Rosenzweig, The Quality of Mercy, 73 Wash. & Lee L. Rev. Online 609 (2017)
Harold J. Krent , Citation: Harold J. Krent, Post-Trial Plea Bargaining and Predictive Analytics in Public Law, 73 Wash. & Lee L. Rev. Online 595 (2017)
Adam Gershowitz’s article calling for post-trial plea bargaining in capital cases reasons that governors should commute sentences to life in prison, in exceptional cases, to limit the costs of protracted post-trial litigation over imposition of the death penalty. The commutation power, in his view, resembles pre-trial plea bargaining in that both the state and the […]
Valena Beety , Citation: Valena Beety, Changing the Culture of Disclosure and Forensics, 73 Wash. & Lee L. Rev. Online 580 (2017)
This Essay responds to Professor Brandon Garrett’s Constitutional Regulation of Forensic Evidence, and, in particular, his identification of the dire need to change the culture of disclosing forensic evidence. My work on forensics is—similarly to Garrett’s—rooted in both scholarship and litigation of wrongful convictions. From this perspective, I question whether prosecutors fully disclose forensics findings […]
Sonja R. West, Citation: Sonja R. West, The Supreme Court's Limited Public Forum, 73 Wash. & Lee L. Rev. Online 572 (2017)
When discussing the issue of transparency at the United States Supreme Court, most commentators focus on the line between public and private. Yet, transparency is not always such a black-or-white issue. There are, in fact, a surprising number of significant Court moments that occur neither wholly in public nor completely in private. Through policies that […]
John D. Bessler, Citation: John D. Bessler, The Inequality of America‘s Death Penalty: A Crossroads for Capital Punishment at the Intersection of the Eighth and Fourteenth Amendments, 73 Wash. & Lee L. Rev. Online 487 (2016)
Jenia I. Turner & Allison D. Redlich, Citation: Jenia I. Turner & Allison D. Redlich, Reply to Miriam Baer and Michael Doucette’s Reviews of Two Models of Pre-Plea Discovery in Criminal Cases, 73 Wash. & Lee L. Rev. Online 471 (2016)
Fredrick E. Vars, Citation: Fredrick E. Vars, Prosecutorial Misconduct: The Best Defense Is a Good Defense, 73 Wash. & Lee L. Rev. Online 465 (2016)
Carl Tobias, Citation: Carl Tobias, Confirm Judge Koh for the Ninth Circuit, 73 Wash. & Lee L. Rev. Online 449 (2016)
On February 25, 2016, President Barack Obama appointed United States District Court Judge Lucy Haeran Koh for a judicial emergency vacancy on the United States Court of Appeals for the Ninth Circuit. The jurist has served professionally for more than six years in the United States District Court for the Northern District of California, ably […]
Kevin Golembiewski , Citation: 73 Wash. & Lee L. Rev. Online 433 (2016)
This term, the Supreme Court will consider Fry v. Napoleon Community Schools. Fry implicates a circuit split on the proper scope of the exhaustion requirement in 20 U.S.C. § 1415(l) of the Individuals with Disabilities Education Act (IDEA). That section requires parents of students with disabilities to exhaust state administrative remedies “before the filing of […]
Michael R. Doucette, Citation: Michael R. Doucette, 73 Wash. & Lee L. Rev. Online 415 (2016)
In their article, Two Models of Pre-Plea Discovery in Criminal Cases: An Empirical Comparison, Professors Turner and Redlich ostensibly compare North Carolina’s “open-file” criminal discovery with Virginia’s “closed-file” discovery. Based on their survey results, they conclude that open-file discovery is “a better guarantor of informed decisions and efficient process in criminal cases.” While we appreciate the […]
Jennifer Wriggins, Citation: Jennifer Wriggins, Response to Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law, 73 Wash. & Lee L. Rev. Online 401 (2016)
Issues of race and racism in the U.S. torts system continue to deserve much more attention from legal scholarship than they receive, and Keeping Cases from Black Juries is a valuable contribution. Studying racism as it infects the torts system is difficult because explicit de jure exclusions of black jurors are in the past; race […]
James M. Oleske, Jr., Citation: James M. Oleske, Jr., Grand Theory or Discrete Proposal? Religious Accommodations and Health Related Harms, 73 Wash. & Lee L. Rev. Online 387 (2016)
More than a quarter-century has passed since the Supreme Court decided inEmployment Division v. Smith that religious accommodations are primarily a matter of legislative grace, not constitutional right. In that time, barrels of ink have been spilled over the merits of the Smith decision. But comparatively little attention has been given to the issue of […]
David H. Moore, Citation: David H. Moore, United States Courts and Imperialism, 73 Wash. & Lee L. Rev. Online 338 (2016)
When U.S. Courts adjudicate transnational matters, they risk two forms of judicial imperialism. The first—unilateral imperialism—involves adjudication by a single state at the expense of multilateral forms of resolution or global governance. The second—sovereigntist imperialism—threatens the sovereignty of other states who might wish to resolve the controversy themselves. The risk of imperialism may lead U.S. […]
Doriane Lambelet Coleman, Citation: Doriane Lambelet Coleman, Religiously-Motivated Medical Neglect: A Response to Professors Levin, Jacobs, and Arora, 73 Wash. & Lee L. Rev. Online 359 (2016)
This Response to Professors Levin, Jacobs, and Arora’s article, To Accommodate or Not to Accommodate: (When) Should the State Regulate Religion to Protect the Rights of Children and Third Parties?, focuses on their claim that the law governing religious exemptions to medical neglect is messy, unprincipled, and in need of reform, including because it violates […]
Miriam H. Baer, Citation: 73 Wash. & Lee L. Rev. Online 347 (2016)
This Response addresses Jenia Turner and Alison Redlich’s comparative analysis of criminal discovery practices in two neighboring states, Virginia and North Carolina. Whereas Virginia adheres to the traditional, category-driven approach, North Carolina requires its prosecutors to disclose the contents of their “file,” with some notable exceptions. Open-file discovery has quickly become a fertile source of […]
Peter G. Strasser, Citation: Peter G. Strasser, An Anti-Corruption Bureau’s Inexorable Endeavor: A Study of Malawi’s Cashgate Scandal, 73 Wash. & Lee L. Rev. Online 303 (2016)
The “Cashgate” scandal has had far-reaching consequences for the southern African nation of Malawi and its people. Western donors suspended budgetary aid—circa $150 million annually—upon learning that civil servants and senior cabinet ministers in former President Joyce Banda’s administration had manipulated the government’s financial management system to embezzle more than $45 million over an eighteen-month […]
Kevin R. Johnson, Citation: 73 Wash. & Lee L. Rev. Online 269 (2016)
Jenny-Brooke Condon’s article The Preempting of Equal Protection for Immigrants?analyzes important issues surrounding the constitutional rights of immigrants. Professor Condon in essence contends that the current legislative, executive, and scholarly focus on the distribution of immigration power between the state and federal governments has undermined the Equal Protection rights of legal immigrants in the United […]
Mark Glover, Citation: 73 Wash. & Lee L. Rev. Online 289 (2016)
In Irresolute Testators, Clear and Convincing Wills Law, Professor Jane Baron draws attention to a conflict between the mechanics of the law of wills and the realities of testation. Baron observes that the law of wills is designed to be used as a tool by resolute and rationale testators to communicate their intent regarding the […]
Naomi Cahn, Citation: Naomi Cahn, Incomplete Dispositions, 73 Wash. & Lee L. Rev. Online 259 (2016)
In Irresolute Testators, Professor Jane Baron provocatively suggests the existence of two distinct types of testators: the rational, autonomous testator who has made deliberate choices about the contents of her will and whose errors, if any, are minor; and the more vulnerable, less resolute testator who may not have actually made the final decisions enshrined […]
Anne M. Anderson, Citation: Anne M. Anderson, How Much Are You Worth?: A Statutory Alternative to the Unconstitutionality of Experts’ Use of Minority-Based Statistics, 73 Wash. & Lee L. Rev. Online 206 (2016).
Wee Jin Yeo, Citation: Wee Jin Yeo, Belmora LLC v. Bayer Consumer Care AG—The Well-Known Marks Doctrine Reconsidered, 73 Wash. & Lee L. Rev. Online 188 (2016).
The territoriality principle, basic to United States trademark law, provides that foreign uses of a trademark do not give the user trademark rights in the United States. An important exception to this principle is the well-known marks doctrine, which allows a foreign user to obtain priority rights in the United States over a mark used […]
Colin Miller, Citation: Colin Miller, Sovereign Impunity: Why Double Jeopardy Should Apply in Puerto Rico, 73 Wash. & Lee L. Rev. Online 174 (2016),
On January 13th, 2016, the Supreme Court of the United States heard oral arguments in Puerto Rico v. Sanchez Valle. The question that the Court must decide is whether the federal government and the Commonwealth of Puerto Rico are separate sovereigns for purposes of the Double Jeopardy Clause. This essay argues that the Supreme Court […]
Candace Johnson & Mae C. Quinn, Citation: Candace Johnson & Mae C. Quinn, Chaining Kids to the Ever Turning Wheel: Other Contemporary Costs of Juvenile Court Involvement, 73 Wash. & Lee L. Rev. Online 159 (2016).
In this essay, Candace Johnson and Mae Quinn respond to Tamar Birckhead’s important article The New Peonage, based, in part, on their work and experience representing youth in St. Louis, Missouri. They concur with Professor Birckhead’s conclusions about the unfortunate state of affairs in 21st century America— that we use fines, fees, and other prosecution […]
Molly Jackman & Lauri Kanerva, Citation: Molly Jackman & Lauri Kanerva, Evolving the IRB: Building Robust Review for Industry Research, 72 Wash. & Lee L. Rev. Online 442 (2016).
Increasingly, companies are conducting research so that they can make informed decisions about what products to build and what features to change.These data-driven insights enable companies to make responsible decisions that will improve peoples’ experiences with their products. Importantly, companies must also be responsible in how they conduct research. Existing ethical guidelines for research do […]
Arthur R. Vorbrodt, Citation: Arthur R. Vorbrodt, Clapper Dethroned: Imminent Injury and Standing for Data Breach Lawsuits in Light of Ashley Madison, 73 Wash. & Lee L. Rev. Online 61 (2016).
Radu Mares, Citation: Radu Mares, A Rejoinder to G. Skinner's Rethinking Limited Liability of Parent Corporations for Foreign Subsidiaries' Violations of International Human Rights Law, 73 Wash. & Lee L. Rev. Online 117 (2016).
Omar Tene & Jules Polonetsky, Citation: Omer Tene & Jules Polonetsky, Beyond IRBs: Ethical Guidelines for Data Research, 72 Wash. & Lee L. Rev. Online 458 (2016).
Mitchell D. Diles, Citation: Mitchell D. Diles, Condemning Clothes: The Constitutionality of Taking Trademarks in the Professional Sports Franchise Context, 73 Wash. & Lee L. Rev. Online 1 (2016).
The resurgence in franchise free agency in the National Football League (NFL) potentially implicates the loss of a significant source of local identity and tradition for multiple cities. In January 2016, NFL owners approved the relocation of the Rams franchise from St. Louis, Missouri, to Los Angeles, California, by a vote of thirty-to-two. The owners’ […]