Christopher W. Schmidt , Citation: 75 Wash. & Lee L. Rev. Online 33 (2018).
In this Essay, I argue that originalism conflicts with the Supreme Court’s current jurisprudence defining the scope of Congress’ power to enforce the Fourteenth Amendment. Under the standard established in Boerne v. Flores, the Court limits congressional power under Section 5 of the Fourteenth Amendment to statutory remedies premised on judicially defined interpretations of Fourteenth […]
Darrell A. H. Miller, Citation: 74 Wash. & Lee L. Rev. Online 438 (2018)
William Araiza’s insightful article, Arming the Second Amendment, has one essential, hidden component: dignity. Dignity helps explain the peculiar hydraulics of Congress’s power to enforce section five of the Fourteenth Amendment—a jurisprudence in which the less scrutiny the Court itself applies to a given class or right, the more scrutiny it applies to congressional efforts […]
Eve Hanan, Citation: 74 Wash. & Lee L. Rev. Online 420 (2018)
Stories abound of public defenders who, overwhelmed with high caseloads, allow defendants to languish in pre-trial detention and guilty pleas to be entered without examining the merits of the case. Most defendants cannot afford to hire an attorney, and, thus, have no choice other than to accept the public counsel appointed by the court. In […]
William D. Araiza, Citation: 74 Wash. & Lee L. Rev. Online 383 (2018)
This Response considers Evan Zoldan’s argument, set forth in his recently-published Article, that one can find a coherent principle underlying the vexing case of United States v. Klein in the idea that government is prohibited from what Zoldan calls “self-dealing.” The promise is a seductive one: Klein, and in particular its language prohibiting Congress from […]
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, […]
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 […]
Joan MacLeod Heminway, Citation: 73 Wash. & Lee L. Rev. Online 829 (2017)
Thomas Berry, Citation: Thomas Berry, Explaining the Persistence of the “Ample Alternative Channels” Test, 73 Wash. & Lee L. Rev. Online 786 (2017)
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 […]
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)
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 […]
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 […]
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 […]
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).
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).
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).
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).
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 […]
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 […]
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 […]
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 […]