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’ […]
Camilla A. Hrdy & Ben Picozzi, Citation: Camilla A. Hrdy & Ben Picozzi, The AIA Is Not a Taking: A Response to Dolin & Manta, 72 Wash. & Lee L. Rev. Online 472 (2016).
Effy Vayena, Urs Gasser, Alexandra Wood, David R. O'Brien, Micah Altman, Citation: 72 Wash. & Lee L. Rev. Online 420 (2016)
Emerging large-scale data sources hold tremendous potential for new scientific research into human biology, behaviors, and relationships. At the same time, big data research presents privacy and ethical challenges that the current regulatory framework is ill-suited to address. In light of the immense value of large-scale research data, the central question moving forward is not […]
Dennis D. Hirsch, Jonathan H. King, Citation: 72 Wash. & Lee L. Rev. Online 406 (2016)
Today, organizations globally wrestle with how to extract valuable insights from diverse data sets without invading privacy, causing discrimination, harming their brand, or otherwise undermining the sustainability of their big data projects. Leaders in these organizations are thus asking: What management approach should businesses employ sustainably to achieve the tremendous benefits of big data analytics, […]
Craig Konnoth, Citation: Craig Konnoth, Classification Standards for Health Information: Ethical and Practical Approaches, 72 Wash. & Lee L. Rev. Online 395 (2016).
Secondary health information research requires vast quantities of data in order to make clinical and health delivery breakthroughs. Restrictive policies that limit the use of such information threaten to stymie this research. While the Notice of Proposed Rulemaking (NPRM) for the new Common Rule permits patients to provide broad consent for the use of their […]
Lieke Jetten & Stephen Sharon, Citation: Lieke Jetten & Stephen Sharon, Selected Issues Concerning the Ethical Use of Big Data Health Analytics, 72 Wash. & Lee L. Rev. Online 486 (2016).
Paul J. Larkin Jr., John-Michael Seibler, Citation: 72 Wash. & Lee L. Rev. Online 376 (2016)
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 […]