Timothy C. MacDonnell, Citation: Timothy C. MacDonnell, The Rhetoric of the Fourth Amendment: Toward a More Persuasive Fourth Amendment, 73 Wash. & Lee L. Rev. 1869 (2016)
In the last forty-five years, the United States Supreme Court’s jurisprudence through the lens of classical rhetoric. Opinions are assessed based on three areas of persuasion: appeals to logic (logos); appeals to emotion (pathos); and appeals to credibility (ethos). By examining the Justices’ opinions in this fashion, patterns of unpersuasive opinion writing emerge. While a […]
Kristin Johnson, Steven A. Ramirez & Cary Martin Shelby, Citation: Kristin Johnson, Steven A. Ramirez & Cary Martin Shelby, Diversifying to Mitigate Risk: Can Dodd–Frank Section 342 Help Stabilize the Financial Sector?, 73 Wash. & Lee L. Rev. 1795 (2016)
Darian M. Ibrahim, Citation: Darian M. Ibrahim, Intrapreneurship, 73 Wash. & Lee L. Rev. 1741 (2016)
This Article on “intrapreneurship” has several goals. First, it points out that while much of the legal literature on innovation is concerned with startups (entrepreneurship), the innovation that takes place inside our largest corporations (intrapreneurship) is substantial, important, and understudied. Second, the Article observes that while large technology corporations that used to be startups may […]
Enrique Armijo, Citation: Enrique Armijo, The “Ample Alternative Channels” Flaw in First Amendment Doctrine, 73 Wash. & Lee L. Rev. 1657 (2016)
In reviewing a content-neutral regulation affecting speech, courts ask if the regulation leaves open “ample alternative channels of communication” for the restricted speaker’s expression. Substitutability is the underlying rationale. If the message could have been expressed in some other legal way, the ample alternative channels requirement is met. The court then deems the restriction’s harm […]
Michael L. Perlin, Citation: Michael L. Perlin, “Merchants and Thieves, Hungry for Power”: Prosecutorial Misconduct and Passive Judicial Complicity in Death Penalty Trials of Defendants with Mental Disabilities, 73 Wash. & Lee L. Rev. 1501 (2016)
Richard J. Wilson, Citation: Richard J. Wilson, The Death Penalty and Mental Illness in International Human Rights Law: Toward Abolition, 73 Wash. & Lee L. Rev. 1469 (2016)
Richard J. Bonnie, Citation: Richard J. Bonnie, Mental Illness, Severe Emotional Distress, and the Death Penalty: Reflections on the Tragic Case of Joe Giarratano, 73 Wash. & Lee L. Rev. 1445 (2016)
Joe Giarratano was on death row for twelve years, and remains incarcerated today, because mental illness and severe emotional distress wholly undermined reliable adjudication in his case. Using Giarratano’s remarkable story as a case study, I illustrate some of the ways in which mental illness and acute emotional distress can lead to unreliable findings and […]
Phyllis Goldfarb, Citation: Phyllis Goldfarb, Matters of Strata: Race, Gender, and Class Structures in Capital Cases, 73 Wash. & Lee L. Rev. 1395 (2016)
Adam M. Gershowitz, Citation: Adam M. Gershowitz, Post-Trial Plea Bargaining in Capital Cases: Using Conditional Clemency to Remove Weak Cases from Death Row, 73 Wash. & Lee L. Rev. 1359 (2016)
Plea bargaining accounts for over ninety percent of criminal convictions and it dominates the American criminal justice system. Yet, once a defendant is convicted, bargaining almost completely disappears from the system. Even though years of litigation are on the horizon, there is nearly no bargaining in the appellate and habeas corpus process. There are two […]
Paul J. Larkin Jr., Citation: Paul J. Larkin Jr., The Demise of Capital Clemency, 73 Wash. & Lee L. Rev. 1295 (2016)
Jonathan D. Colan, Citation: Jonathan D. Colan, The Supreme Court’s Talmudic Debate on the Meanings of Guilt, Innocence, and Finality, 73 Wash. & Lee L. Rev. 1243 (2016)
Robert Johnson, Citation: Robert Johnson, Solitary Confinement Until Death by State-Sponsored Homicide: An Eighth Amendment Assessment of the Modern Execution Process, 73 Wash. & Lee L. Rev. 1213 (2016)
Toni V. Bair, Citation: Toni V. Bair, Professional Correctional Management Operating a Death Row Population: Putting Theory into Practice, 73 Wash. & Lee L. Rev. 1189 (2016)
Brandon L. Garrett, Citation: Brandon L. Garrett, Constitutional Regulation of Forensic Evidence, 73 Wash. & Lee L. Rev. 1147 (2016)
Robin C. Konrad, Citation: Robin C. Konrad, Lethal Injection: A Horrendous Brutality, 73 Wash. & Lee L. Rev. 1127 (2016)
Todd C. Peppers, Citation: Todd C. Peppers, The Commonwealth of Virginia v. Joseph Michael Giarratano: A Cautionary Tale, 73 Wash. & Lee L. Rev. 1119 (2016)
Hillel Y. Levin, Allan J. Jacobs & Kavita Shah Arora, Citation: Hillel Y. Levin, Allan J. Jacobs & Kavita Shah Arora, To Accommodate or Not to Accommodate: (When) Should the State Regulate Religion to Protect the Rights of Children and Third Parties?, 73 Wash. & Lee L. Rev. 915 (2016)
When should we accommodate religious practices? When should we demand that religious groups instead conform to social or legal norms? Who should make these decisions, and how? These questions lie at the very heart of our contemporary debates in the field of Law and Religion. Particularly thorny issues arise where religious practices may impose health-related […]
Stavros Gadinis & Colby Mangels, Citation: Stavros Gadinis & Colby Mangels, Collaborative Gatekeepers, 73 Wash. & Lee L. Rev. 797 (2016)
In their efforts to hold financial institutions accountable after the 2007 financial crisis, U.S. regulators have repeatedly turned to anti-money-laundering laws. Initially designed to fight drug cartels and terrorists, these laws have recently yielded billion-dollar fines for all types of bank engagement in fraud and have spurred an overhaul of financial institutions’ internal compliance. This […]
Gregory Dolin & Irena D. Manta, Citation: Gregory Dolin & Irena D. Manta, Taking Patents, 73 Wash. & Lee L. Rev. 719 (2016)
The America Invents Act (AIA) was widely hailed as a remedy to the excessive number of patents that the Patent & Trademark Office issued, and especially ones that would later turn out to be invalid. In its efforts to eradicate “patent trolls” and fend off other ills, however, the AIA introduced serious constitutional problems that […]
Hannah L. Buxbaum, Citation: Hannah L. Buxbaum, Foreign Governments as Plaintiffs in U.S. Courts and the Case Against “Judicial Imperialism”, 73 Wash. & Lee L. Rev. 653 (2016)
One consequence of the increasingly transnational nature of civil litigation is that U.S. courts must frequently address the interests of foreign sovereigns. These interactions arise primarily in three contexts: when a foreign government is the defendant in a U.S. court; when a claim requires a U.S. court to scrutinize actions taken by a foreign government; […]
Donald G. Gifford & Brian Jones, Citation: Donald G. Gifford & Brian Jones, Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law, 73 Wash. & Lee L. Rev. 557 (2016)
This Article presents an empirical analysis of how race, income inequality, the regional history of the South, and state politics affect the development of tort law.
Jenia I. Turner & Allison D. Redlich, Citation: Jenia I. Turner & Allison D. Redlich, Two Models of Pre-Plea Discovery in Criminal Cases: An Empirical Comparison, 73 Wash. & Lee L. Rev. 285 (2016).
Our criminal justice system resolves most of its cases through plea bargains. Yet the U.S. Supreme Court has not required that any evidence, even exculpatory or impeachment evidence, be provided to the defense before a guilty plea. As a result, state rules on pre-plea discovery differ widely. While some jurisdictions follow an “open-file” model, imposing […]
Sam Kamin & Viva R. Moffat, Citation: Sam Kamin & Viva R. Moffat, Trademark Laundering, Useless Patents, and Other IP Challenges for the Marijuana Industry, 73 Wash. & Lee L. Rev. 217 (2016).
Lisa Kern Griffin, Citation: Lisa Kern Griffin, Criminal Adjudication, Error Correction, and Hindsight Blind Spots, 73 Wash. & Lee L. Rev. 165 (2016).
Concerns about hindsight in the law typically arise with regard to the bias that outcome knowledge can produce. But a more difficult problem than the clear view that hindsight appears to provide is the blind spot that it actually has. Because of the conventional wisdom about error review, there is a missed opportunity to ensure […]
Jenny-Brooke Condon, Citation: Jenny-Brooke Condon, The Preempting of Equal Protection for Immigrants?, 73 Wash. & Lee L. Rev. 77 (2016).
Recent debates about immigration have focused overwhelmingly on unauthorized migration and the respective roles of the federal and state governments in enforcing immigration law. But that emphasis in law and theory has obscured a critical civil rights question of our time: what measure of equality is due to those with the opportunity to abide by […]
Jane B. Baron, Citation: Jane B. Baron, Irresolute Testators, Clear and Convincing Wills Law, 73 Wash. & Lee L. Rev. 3 (2016).
Controversial recent wills law reforms, embodied in new provisions of both the Uniform Probate Code and the Restatement of Property, excuse so-called harmless errors in will execution and permit judicial correction of erroneous terms in a will or trust. Both reforms pose evidentiary dangers, as proof of the error must come from outside the attested […]
W. Mark C. Weidemaier, Citation: W. Mark C. Weidemaier, Customized Procedure in Theory and Reality, 72 Wash. & Lee L. Rev. 1865 (2015).
Contract theory has long posited that parties can maximize contract value by manipulating the procedural rules that will apply if there is a dispute. Beyond choosing a litigation or arbitration forum, parties can allocate costs and fees, alter pleading standards, adjust evidentiary and discovery rules, and customize nearly every aspect of the adjudication process. In […]
Gwynne Skinner, Citation: Gwynne Skinner, Rethinking Limited Liability of Parent Corporations for Foreign Subsidiaries’ Violations of International Human Rights Law, 72 Wash. & Lee L. Rev. 1769 (2015).
The doctrine of limited liability of shareholders often prevents victims harmed by a corporation’s foreign subsidiary’s violation of international human rights norms from obtaining a remedy when that subsidiary operates in a country that has a weak or ineffective judicial system. This is because victims are often unable to obtain a remedy in these countries, […]
Margaret Hu, Citation: Margaret Hu, Taxonomy of the Snowden Disclosures, 72 Wash. & Lee L. Rev. 1679 (2015).
This brief Essay offers a proposed taxonomy of the Snowden Disclosures. An informed discussion on the legality and constitutionality of the emerging cybersurveillance and mass dataveillance programs revealed by former NSA contractor Edward Snowden necessitates the furtherance of cybersurveillance aptitude. This Essay contends, therefore, that a detailed examination of the Snowden disclosures requires not just […]
Tamar R. Birckhead, Citation: Tamar R. Birckhead, The New Peonage, 72 Wash. & Lee L. Rev. 1595 (2015).
Although the Thirteenth Amendment to the Constitution formally abolished slavery and involuntary servitude in 1865, the text created an exception for the punishment of crimes “whereof the party shall have been duly convicted.” Two years later, Congress passed The Anti-Peonage Act in an attempt to prohibit the practice of coerced labor for debt. Yet, in […]
Steven I. Friedland, Citation: Steven I. Friedland, I Spy: The New Self-Cybersurveillance and the "Internet of Things", 72 Wash. & Lee L. Rev. 1459 (2015).
Prior to the digital age, surveillance generally meant a government agent or private investigator engaged in a stakeout or observation detail that involved physical work, expense, and time. The digital age changed surveillance fundamentally. Today, we not only generate mountains of data for others, we also effectively surveil ourselves through digitally-connected, multifunctional smart devices, collectively […]
Geoffrey S. Corn, Citation: Geoffrey S. Corn, Averting the Inherent Dangers of "Going Dark": Why Congress Must Require a Locked Front Door to Encrypted Data, 72 Wash. & Lee L. Rev. 1433 (2015).
Chris Jenks, Citation: Chris Jenks, State Labs of Federalism and Law Enforcement "Drone" Use, 72 Wash. & Lee L. Rev. 1389 (2015).
Woodrow Hartzog & Evan Selinger, Citation: Woodrow Hartzog & Evan Selinger, Surveillance as Loss of Obscurity, 72 Wash. & Lee L. Rev. 1343 (2015).
Bart Forsyth, Citation: Bart Forsyth, Banning Bulk: Passage of the USA FREEDOM Act and Ending Bulk Collection, 72 Wash. & Lee L. Rev. 1307 (2015).
Peter Marguiles, Citation: Peter Margulies, Defining "Foreign Affairs" in Section 702 of the FISA Amendments Act: The Virtues and Deficits of Post-Snowden Dialogue on U.S. Surveillance Policy, 72 Wash. & Lee L. Rev. 1283 (2015).
Peter M. Szeremeta, Citation: Peter M. Szeremeta, Squeezing Public Schools’ Lemons: Theorizing an Adequacy Challenge to Teacher Tenure, 73 Wash. & Lee L. Rev. 1601 (2016)
Lucas M. Barta, Citation: Lucas M. Barta, Rate Me: Risk Assessment Drones and the Resurrection of Discriminatory Insurance Practices, 73 Wash. & Lee L. Rev. 1549 (2016)
Loren Peck, Citation: Loren Peck, How Sound Is the Science? Applying Daubert to Biomechanical Experts’ Injury Causation Opinions, 73 Wash. & Lee L. Rev. 1063 (2016)
Kerriann Laubach, Citation: Kerriann Laubach, Epigenetics and Toxic Torts: How Epidemiological Evidence Informs Causation, 73 Wash. & Lee L. Rev. 1019 (2016)
Charlotte W. Rhodes, Citation: Charlotte W. Rhodes, Living in a Material World: Defining “Materiality” in the Municipal Bond Market and Rule 15c2–12, 72 Wash. & Lee L. Rev. 1989 (2015).
Jennifer L. Commander, Citation: Jennifer L. Commander, The Player, the Video Game, and the Tattoo Artist: Who Has the Most Skin in the Game?, 72 Wash. & Lee L. Rev. 1947 (2015).
Brooke A. Weedon, Citation: Brooke A. Weedon, New Limits on General Personal Jurisdiction: Examining the Retroactive Application of Daimler in Long-Pending Cases, 72 Wash. & Lee L. Rev. 1549 (2015).
Alyson M. Cox, Citation: Alyson M. Cox, Does It Stay, or Does It Go?: Application of the Good-Faith Exception When the Warrant Relied Upon Is Fruit of the Poisonous Tree, 72 Wash. & Lee L. Rev. 1505 (2015).
Student Notes Colloquium
John J. Miles, Citation: John J. Miles, The Meaning of "Direct" Effect on Domestic Commerce Under the Foreign Trade Antitrust Improvements Act, 73 Wash. & Lee L. Rev. 541 (2016).
J. Franck Hogue, Citation: J. Franck Hogue, Recalling First Principles: The Importance of Comity in Avoiding Antitrust Imperialism, 73 Wash. & Lee L. Rev. 533 (2016).
Claire L. Leonard, Citation: Claire L. Leonard, In Need of Direction: An Evaluation of the "Direct Effect" Requirement Under Foreign Trade Antitrust Improvements Act, 73 Wash. & Lee L. Rev. 489 (2016).
Mark Rush, Citation: Mark Rush, A Curious Call for More Judicial Activism: Comment on Alexandra Klein's "The Freedom to Pursue a Common Calling", 73 Wash. & Lee L. Rev. 477 (2016).
Paul L. Larkin Jr. , Citation: Paul J. Larkin Jr., A Tale of Two Cases, 73 Wash. & Lee L. Rev. 467 (2016).
Alexandra L. Klein, Citation: Alexandra L. Klein, The Freedom to Pursue a Common Calling: Applying Intermediate Scrutiny to Occupational Licensing Statutes, 73 Wash. & Lee L. Rev. 411 (2016).