Michael D. Cicchini
In theory, the Constitution protects us against criminal conviction unless the state can prove guilt beyond a reasonable doubt. In reality, this lofty standard is only as strong as the words used to explain it to the jury.
This Article examines how the United States Supreme Court’s 2018 decisions in the First Amendment cases of National Institute of Family & Life Advocates v. Becerra and Janus v. American Federation of State, County, & Municipal Employees, Council 31, muddle an already disorderly compelled-speech doctrine.
Omari Scott Simmons
Shareholder activism—using an equity stake in a corporation to influence management—has become a popular tool to effectuate social change in the twenty-first century.
Virginia Harper Ho
In 2017, shareholder proposals urging corporate boards to report on their climate-related risk made headlines when they earned majority support from investors at ExxonMobil, Occidental Petroleum, and PPL.
Sarah C. Haan
What does “corporate democracy” mean? How far does federal law go to guarantee public company investors a say in a firm’s policies on important social, environmental, or political issues?
Lisa M. Fairfax
In 1952, the SEC altered the shareholder proposal rule to exclude proposals made “primarily for the purpose of promoting general economic, political, racial, religious, social or similar causes.”
Wynter K. Miller & Benjamin E. Berkman
Under the First Amendment, state intervention in conversations between physicians and prospective parents about prenatal whole genome sequencing (PWGS) should trigger at least heightened scrutiny.
Tagged: First Amendment
In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the United States Supreme Court issued an opinion, along with the accompanying concurrences and dissent, that may well destabilize various settled areas of constitutional law and likely represents shots across the bow with respect to a number of issues that will make their way before the Court.
Malinda L. Seymore
The Trump Administration’s new immigration policy of family separation at the U.S./Mexico border rocked the summer of 2018. Yet family separation is the prerequisite to every legal adoption.
Michael L. Rustad & Elif Kavusturan
Software licensing and software-as-a-service contracts are innovative in their streamlining of products, as well as in their contracting practices, done in both a legislative and common law void. The dearth of case law and the legislative void leaves both software providers and customers with no guidance on contract law issues on software licensing and cloud […]
This Article posits that two significant problems in the Supreme Court’s personal jurisdiction case law have led to incoherent and irreconcilable results in cases involving individual and corporate defendants.
William W. Berry
In light of the dehumanizing effects of a felony conviction, the Eighth Amendment sentencing principle requiring individualized sentencing determination in capital sentences and juvenile life-without-parole sentences should be extended to all felony cases.
David B. Wilkins & Brant J. Hellwig
Professor David B. Wilkins of Harvard Law School undertook considerable research in crafting a commencement address that incorporated several prominent figures from the history W&L Law and the University.
Tagged: Commencement Address
Jason Rantanen & Sarah E. Jack
The conventional explanation for why people seek patents draws on a simple economic rationale. Patents, the usual story goes, provide a financial reward: the ability to engage in supracompetitive pricing by excluding others from practicing the claimed technology.
Tagged: Patent Law
Third-party funding of legal claims is becoming more common, and increasingly more controversial. Whether in the legislative arena or in the courts, the fight over whether and how independent parties might provide funding to litigants has become heated.
The standard narrative of entrepreneurship is one of self-employed creative individuals working out of their garage or independently owned start-up companies. Intrapreneurship—where employees are responsible for being alert to new opportunities inside firms—is another model for developing innovations.
Eric C. Chaffee
By understanding the corporation as a collaboration between the government and the individuals organizing, operating, and owning the corporation, the impermissibility of aggressive corporate tax avoidance becomes apparent.
Sahar F. Aziz
Shoba Sivaprasad Wadhia
Jason A. Cade
This Article focuses attention on two recent and notable federal court opinions considering challenges to Trump Administration deportation decisions. While finding no statutory bar to the noncitizens’ detention and deportation in these cases, the court in each instance paused to highlight the injustice of the removal decisions. This Article places the opinions in the context […]
César Cuauhtémoc García Hernández
Ming Hsu Chen
My intended focus is on the widespread response—in cities, churches, campuses, and corporations that together comprise “sanctuary networks”¹—to the Trump Administration’s Executive Order 13768 Enhancing Public Safety in the Interior of the United States² as an instance of the changing relationship between federal, local, and private organizations in the regulation of immigration. After briefly covering […]
Courtney Joy McMullan
This Note examines if, and to what degree, courts should consider the pressure put on universities to address sexual misconduct on campus as support for an accused student’s Title IX claim of gender discrimination during university disciplinary proceedings.
Circuit courts disagree on whether participation in a pretrial diversion program counts as a favorable termination of the conviction or sentence such that a § 1983 action challenging the conviction can proceed.
Mary Kate Nicholson
The United States was founded in part on the principle of freedom of religion, where citizens were free to practice any religion. The founding fathers felt so strongly about this principle that it was incorporated into the First Amendment.
Imagine you have decided to run for office, to speak out publicly against an injustice, to enter the job market, or even to join a new online forum. Now, imagine after starting your chosen endeavor, you go online to discover that someone who disagrees with your position posted your personal information on the internet and […]
Spence M. Howden
Courts do not treat text messages as intangible personal property. Authors and recipients of text messages have limited recourse against cell phone manufacturers or service providers when they “accidentally” delete their users’ text messages.
Tagged: Property Law
Kiersten E. Holms
This Note argues that the recent court decisions rejecting the government’s bare legal title defense are consistent with CERCLA. Courts should not treat the federal government any differently than a private entity and, therefore, courts should hold the federal government liable as an owner under CERCLA for its role as legal titleholder to public lands.
Ian J. McElhaney
This Note considers whether a duty for road-maintaining entities is tenable under Virginia law. It also explores the rationale for imposing differing liabilities between landowners and road-maintaining entities.
Mary Nobles Hancock
This Note addresses whether, and to what extent, the four factors proposed by the Fourth Circuit, and subsequently rejected by the Sixth Circuit, are an appropriate test of the constitutionality of a legislative prayer practice under United States Supreme Court jurisprudence. Part II explores the background of the Establishment Clause and legislative prayer. The Supreme […]
On September 8, 2017, Allergan and the Saint Regis Mohawk Tribe announced an agreement to transfer six patents protecting Restasis to the Tribe.
This Response to Ian McElhaney’s note examines (1) the background legal context that got us to where we are on falling-tree liability; (2) how this peculiar issue fits into Virginia’s general approach to the law; and (3) presents some thoughts on Mr. McElhaney’s reasoning and ultimate conclusions in urging liability for road maintainers.
E. Kyle McNew
In his Note, Ian McElhaney concludes that the Court got it right in Cline v. Dunlora South, LLC—that the landowner owes no duty to protect travelers on adjoining roadways from natural conditions on the landowner’s property—because the Court also got it right in Cline v. Commonwealth when it held that the Commonwealth of Virginia may […]
Samuel W. Calhoun
The Supreme Court has long misconstrued the Establishment Clause. This misinterpretation in turn has led the Court mistakenly to interpose itself into the realm of legislative prayer, an incursion the Founders never intended.
Caroline Mala Corbin
This Response to Mary Nobles Hancock’s Note explains Christian nationalism, and argues that government sponsored Christian prayers reflect and exacerbate Christian nationalism.
M. Claire Flowers
Multiple federal courts have recognized and applied the inevitable disclosure doctrine in cases brought by employers against former employees under the DTSA. The inevitable disclosure doctrine allows a business to temporarily enjoin the new employment of a former employee by a competitor on the theory that the employee learned confidential information while working for that […]
This Note suggests that guidance should be drawn from the Supreme Court’s death penalty jurisprudence regarding the execution of intellectually disabled offenders. Atkins v. Virginia paved the way for the juvenile sentencing cases as the Supreme Court for the first time found that, under the Eighth Amendment, a selected class of offenders—the intellectually disabled — […]
David I. Walker
Although nonqualified deferred compensation plans lack explicit tax preferences afforded to qualified plans, it is well understood that nonqualified deferred compensation results in a joint tax advantage when employers earn a higher after-tax return on deferred sums than employees could achieve on their own. But the joint tax advantage depends critically on how plans are […]
Marriage equality has come to America. Throughout 2014, several federal appellate courts and numerous district court judges across the United States invalidated state constitutional or statutory proscriptions on same-sex marriage. Therefore, it was not surprising that Eastern District of Virginia Judge Arenda Wright Allen held that Virginia’s bans were unconstitutional in February. The United States […]
W. Michael Schuster
Invention by artificial intelligence (AI) is the future of innovation. Unfortunately, as discovered through Freedom of Information Act requests, the U.S. patent regime has yet to determine how it will address patents for inventions created solely by AI (AI patents). This Article fills that void by presenting the first comprehensive analysis on the allocation of […]
The Trump Administration has reversed the federal government’s role of protecting the environment. The reversal focuses attention on states’ environmental capacity. This Article advocates more vigorous state environmental tort remedies for nuisance and trespass. An injunction is the superior remedy in most successful environmental litigation because it orders correction and improvement. Two anachronistic barriers to […]
David M. Driesen, Thomas M. Keck & Brandon T. Metroka
This Article addresses the history of the Supreme Court’s interpretation of the Clean Air Act, which now goes back almost half a century. Many scholars have argued that the Court has shifted from an approach to statutory interpretation that relied heavily on purposivism—the custom of giving statutory goals weight in interpreting statutes—toward one that relies […]