Carl Tobias, Citation: Carl Tobias, Electing Justice Roush to the Supreme Court of Virginia, 72 Wash. & Lee L. Rev. Online 360 (2015).
In late April 2015, the Supreme Court of Virginia announced that Justice LeRoy F. Millette, Jr. would retire on July 31, 2015. Democratic Governor Terry McAuliffe expeditiously created an open process for tapping a worthy successor. At July’s conclusion, the Governor appointed Fairfax County Circuit Judge Jane Marum Roush, an experienced, consensus jurist. On a […]
Stephen Y. Chow, Citation: Stephen Y. Chow, DTSA: A Federal Tort of Unfair Competition in Aerial Reconnaissance, Broken Deals, and Employment, 72 Wash. & Lee L. Rev. Online 341 (2015).
This Essay critiques the creation by the 114th Congress of a federal private right of action under the Defend Trade Secrets Act for the state unfair competition cause of trade secret misappropriation hitherto applied mostly to breaches of express or implied confidential relationships between businesses or with employees. The proposed insertion of the Uniform Trade […]
David S. Levine, Citation: 72 Wash. & Lee L. Rev. Online 323 (2015)
Sharon K. Sandeen, Citation: 72 Wash. & Lee L. Rev. Online 308 (2015)
Civil litigation is expensive, both for the party bringing suit and the party that must defend against such claims. For a variety of reasons, not the least of which are the usual requests for preliminary relief and protective orders, trade secret litigation is particularly expensive. These costs can have a crippling effect on small businesses and start-up companies that are […]
Eric Goldman, Citation: 72 Wash. & Lee L. Rev. Online 284 (2015)
Congress is considering the Defend Trade Secrets Act, which would create a new federal trade secret civil cause of action. The Act includes a quirky and unprecedented ex parte procedure for trade secret owners to obtain a seizure order. The seizure provision applies in, at best, a narrow set of circumstances, and it oddly attempts to protect intangible trade secrets […]
Christopher B. Seaman, Citation: 72 Wash. & Lee L. Rev. Online 278 (2015)
Ryan H. Nelson, Citation: Ryan H. Nelson, Sexual Orientation Discrimination Under Title VII After Baldwin v. Foxx, 72 Wash. & Lee L. Rev. Online 255 (2015).
The Equal Employment Opportunity Commission in Baldwin v. Foxx opined—for the first time—that employment discrimination based on sexual orientation violates Title VII of the Civil Rights Act of 1964. This Article tackles the two administrative law questions that Baldwin poses: what level of deference should a court afford Baldwin, and should such deference force that […]
David H. Kaye, Citation: David H. Kaye, Ultracrepidarianism in Forensic Science: The Hair Evidence Debacle, 72 Wash. & Lee L. Rev. Online 227 (2015).
For over 130 years, scientific sleuths have inspected hairs under microscopes. Late in 2012, the FBI, the Innocence Project, and the National Association of Criminal Defense Lawyers joined forces to review thousands of microscopic hair comparisons performed by FBI examiners over several of those decades. The results have been astounding. Based on the first few […]
Marc Edelman, Citation: Marc Edelman, In Defense of Sports Antitrust Law: A Response to Law Review Articles Calling for the Administrative Regulation of Commercial Sports, 72 Wash. & Lee L. Rev. Online 210 (2015).
In recent years, two law review articles have proposed that the United States regulate commercial sports through a direct federal commission, rather than through traditional antitrust remedies. Nevertheless, the practical realities of commercial sports’ power to influence government policy offset the many theoretical advantages to creating a specialized regulatory body to oversee commercial sports. The […]
Geoffrey Rapp, Citation: Geoffrey Rapp, Is it Time to Give Up on Antitrust Law for Pro Sports?, 72 Wash. & Lee L. Rev. Online 203 (2015).
Professor Nathaniel Grow has produced a creative, thoroughly researched piece arguing that antitrust has failed in the context of professional sports and calling for the creation of a national-level federal regulatory agency to address anticompetitive conduct by the major leagues. I respond to his diagnosis of antitrust’s failings and to his prescription.
Darien Shanske, Citation: Darien Shanske, Local Government Finance as Integrated System: The Uneasy Case for Using Special Districts in Real Estate Finance (A Response to Odinet’s Super-Liens to the Rescue? A Case Against Special Districts in Real Estate Finance), 72 Wash. & Lee L. Rev. Online 191 (2015).
Local governments have long used special financing districts to build infrastructure. If a local project, say building a pocket park, is likely to increase the values of properties very close to the park, then why should those properties not pay for the park in the first place? Though efficient and fair in many cases, the […]
Peter W. Salsich, Jr., Citation: Peter W. Salsich Jr., Response to Christopher Odinet, Super- Liens to the Rescue? A Case Against Special Districts in Real Estate Finance, 72 Wash. & Lee L. Rev. Online 181 (2015).
Boris Bindman, Citation: Boris Bindman, Keep on Truckin', Uber: Using the Dormant Commerce Clause to Challenge Regulatory Roadblocks to TNCs, 72 Wash. & Lee L. Rev. Online 136 (2015).
We are witnessing a revolution in the way we get around, if only we glance up from our phones. “Techies” and suit-clad professionals alike use their phones to request rides from tuxedo-attired professional chauffeurs in luxury vehicles, as well as from part-time nonprofessionals using their “daily-driver” to make some extra cash. It is indisputable that […]
Dale A. Whitman, Citation: Dale A. Whitman, Preventing Creditor Abuse of Deficiency Judgements: Some Good (and Not-so-Good) Approaches, 72 Wash. & Lee L. Rev. Online 89 (2015).
Victor Williams, Citation: Victor Williams, Raze the Debt Ceiling: A Test Case for State-Sovereign and Institutional Bondholder Litigation to Void the Debt Limit Statute, 72 Wash. & Lee L. Rev. Online 96 (2015).
In March 2015, the debt ceiling was hit again and sovereign default loomed. Refusing to timely raise the debt ceiling, congressional ideologues have four times pushed our nation to the brink of a catastrophic debt default in as many years. Our struggling economy is again threatened, financial institutions are again spending millions planning for default, […]
Frederic L. Kirgis, Citation: 72 Wash. & Lee L. Rev. Online 71 (2015)
In a federal system with state lines that are easily crossed, physically and electronically, legal disputes often raise choice-of- law issues. Common among those disputes are torts and contracts cases. The courts have taken a variety of approaches to these cases, leading to inconsistent results that depend largely on which forum the plaintiff selects. Judicial […]
John P. Gross, Citation: John P. Gross, Representation by Counsel or Access to Defense Resources: Utah’s Single Source Approach to Indigent Defense, 72 Wash. & Lee L. Rev. Online 51 (2015).
The State of Utah has a unique way of providing representation in criminal cases to defendants who are too poor to hire an attorney. In Utah, there is no statewide funding or supervision of indigent defense. Each county, city, or town is responsible for creating and funding their own indigent defense delivery system. Utah is […]
J. Zachary Balasko, Citation: J. Zachary Balasko, A Return to Reasonability: Modifying the Collateral Source Rule in Light of Artificially Inflated Damage Awards, 72 Wash. & Lee L. Rev. Online 16 (2015)
David Westin, Citation: David Westin, Citizen Lewis Powell, 72 Wash. & Lee L. Rev. Online 1 (2015)
This speech was given at the 2015 Lewis F. Powell Lecture on April 1, 2015 in the Millhiser Moot Court Room at Washington and Lee University.
Michael A. Carrier & Christopher L. Sagers, Citation: 71 Wash. & Lee L. Rev. Online 299
In O’Bannon v. National Collegiate Athletic Ass’n, then-Chief Judge Claudia Wilken of the U.S. District Court for the Northern District of California issued a groundbreaking decision, potentially opening the floodgates for challenges to National Collegiate Athletic Association (NCAA) amateurism rules. The NCAA was finally put to a full evidentiary demonstration of its amateurism defense, and […]
Cadman R. Kiker III, Citation: 71 Wash. & Lee L. Rev. Online 282 (2015)
We are at the dawn of a new era of policing in the United States. In recent months, images of armed police officers patrolling the streets of Ferguson, Missouri, and of a toddler burned by a Georgia SWAT team’s grenade have been indelibly branded into America’s social consciousness. There is a unique bipartisan outcry from […]
Ronald Turner, Citation: 71 Wash. & Lee L. Rev. Online 264 (2015)
In its 1967 decision in Loving v. Virginia, the United States Supreme Court struck down Virginia antimiscegenation laws prohibiting and criminalizing interracial marriages, holding that the challenged laws violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. In recent federal appeals court decisions, Loving has been invoked as an authoritative […]
David S. Levine and Sharon K. Sandeen, Citation: 71 Wash. & Lee L. Rev. Online 230 (2015)
Within the past few years, the U.S. federal government has been forced to confront the massive but hard-to-quantify problem of foreign and state-sponsored cyberespionage against U.S. corporations, from Boeing to small technology start-ups, and (as of this writing) perhaps Sony Pictures Entertainment. As part of that effort, Congress has taken up the Defend Trade Secrets […]
Sherman Clark, Citation: 71 Wash. & Lee L. Rev. Online 215 (2015)
In this response to Marc Edelman’s Article, The District Court Decision in O’Bannon v. National Collegiate Athletic Association: A Small Step Forward for College-Athlete Rights, and a Gateway for Far Grander Change, 71 Wash. & Lee L. Rev. 2319 (2014), I highlight a set of conceptual issues that must be confronted if courts are to craft a […]
Matthew J. Parlow, Citation: 71 Wash. & Lee L. Rev. Online 203 (2015)
The O’Bannon decision made a significant change to one of the philosophical pillars of intercollegiate athletics in allowing for greater compensation for student athletes. At the same time, the court took only an incremental step in the direction of pay for college athletes: The decision was limited to football and men’s basketball players—as opposed to non-revenue-generating sports—and […]
Colin Miller, Citation: 71 Wash. & Lee L. Rev. Online 186 (2014)
The rule against hearsay covers a statement offered to prove the truth of the matter asserted but does not cover a statement offered for another purpose. Meanwhile, the Best Evidence Rule states that a party seeking to prove the content of a writing, recording, or photograph must produce the original or account for its non-production. […]
William C. Banks, Citation: 71 Wash. & Lee L. Rev. Online 169 (2014)
The role of the courts in judging the actions of government in wartime has ranged from extreme deference to careful probing of alleged government excesses over more than two centuries. The courts’ record has reflected the nature of the armed conflicts the United States has engaged in and the legal bases for the actions at issue. In the aggregate, the […]
Kevin Bennardo, Citation: 71 Wash. & Lee L. Rev. Online 160 (2014)
Cooperation agreements and plea agreements are separate and independent promises by criminal defendants to: (1) assist the Government in the prosecution of another person and (2) plead guilty. A defendant’s breach of one should not affect the Government’s obligation to perform under the other. All too often, however, these agreements are inappropriately intertwined so that a minor breach of the plea […]
Lyman P.Q. Johnson and Robert Ricca, Citation: 71 Wash. & Lee L. Rev. Online 150 (2014)
This is a brief Response to Professor Mohsen Manesh’s extensive response to our original article, The Dwindling of Revlon. Our thesis is that today the iconic Revlon doctrine is, remedially, quite substantially diminished. Although Professor Manesh sets out to establish what he calls “the limits of Johnson’s and Ricca’s thesis,” we here maintain, as before, that there is […]
Mohsen Manesh, Citation: 71 Wash. & Lee L. Rev. Online 107 (2014)
Nearly thirty years ago, in Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., the Delaware Supreme Court famously dictated that in certain transactions involving a “sale or change in control,” the fiduciary obligation of a corporation’s board of directors is simply to “get the best price for the stockholders.” Applying a novel remedial perspective to this […]
Sarah Jane Hughes, Citation: 71 Wash. & Lee L. Rev. Online 51 (2014)
This Essay previews issues raised by the general subject of regulating virtual currencies and the specific efforts of New York State’s Department of Financial Services’ proposed Virtual Currency Regulatory Framework (the BitLicense) in particular. It focuses on five topics in the proposal and their interplay with the current regulation of “money services” and “money transmission” […]
Joshua A.T. Fairfield, Citation: 71 Wash. & Lee L. Rev. Online 36 (2014)
Trustless public ledgers (TPLs)—the technology underneath Bitcoin—do more than just create online money. The technology permits people to directly exchange money for what they want, with no intermediaries, such as credit card companies. Contract law is the law of bargained-for exchange, so a technology that enables direct exchange online will change the reality of online […]
Shawn Bayern, Citation: 71 Wash. & Lee L. Rev. Online 22 (2014)
Most legal analysis of Bitcoin has addressed public-law and regulatory matters, such as taxation, securities regulation, and money laundering. This essay considers some questions that Bitcoin raises from a private-law perspective, and it aims to show that technological innovation may highlight problems with conceptualistic, classical rules of private law.
Edward Castronova, Citation: 71 Wash. & Lee L. Rev. Online 14 (2014)
A “digital value transfer system” (DVT) is a computer program that moves purchasing power from one person to another by exchanging different forms of virtual currency. In this Essay, I will give examples of DVTs and explain how they work. Then I will use the economic theory of budgets to explain how DVTs increase the […]
Lawrence L. Muir, Jr., Citation: 71 Wash. & Lee L. Rev. Online 73 (2014)
In May 2014, the Federal Bureau of Investigation indicted five Chinese nationals for cybercrimes against American companies. That indictment was an impotent response. The United States has no extradition treaty with China, and the defendants will in all likelihood never be tried in the United States. The inefficacy of the indictments highlights a larger problem: […]
Horace, Citation: 71 Wash. & Lee L. Rev. Online 1
In Commonwealth v. Morris, the Supreme Court of Virginia properly decided that the writs of coram vobis and audita querela may not be used to modify a final criminal conviction order more than twenty-one days after its entry. The court decided the inapplicability of coram vobis under Virginia Code § 8.01-677 and its own precedent. […]