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).
Danielle Keats Citron, Citation: Danielle Keats Citron, Spying Inc., 72 Wash. & Lee L. Rev. 1243 (2015).
The latest spying craze is the “stalking app.” Once installed on someone’s cell phone, the stalking app can provide continuous access to the phone owner’s calls, texts, snapchats, photos, calendar updates, and movements. Stalking apps destroy the privacy and confidentiality of cell phone activities. Domestic abusers and stalkers frequently turn to stalking apps because they […]
Russell L. Weaver, Citation: Russell L. Weaver, Cybersurveillance in a Free Society, 72 Wash. & Lee L. Rev. 1207 (2015).
David Gray, Citation: David Gray, Dangerous Dicta, 72 Wash. & Lee L. Rev. 1181 (2015).
Stephen I. Vladeck, Citation: Stephen I. Vladeck, The FISA Court and Article III, 72 Wash. & Lee L. Rev. 1161 (2015).
Gregory S. McNeal, Citation: Gregory S. McNeal, Government-Operated Drones and Data Retention, 72 Wash. & Lee L. Rev. 1139 (2015).
Alan M. Weinberger, Citation: 72 Wash. & Lee L. Rev. 829 (2015)
While achieving success as a major league catcher, Mike Matheny was preparing for a post-baseball career in real estate development. He could not have picked a worse time to pursue his aspiration. Matheny lost his accumulated savings and his family’s home after being held personally liable for a $4.2 million deficiency judgment following foreclosure of […]
William K. Sjostrom, Jr, Citation: 72 Wash. & Lee L. Rev. 795 (2015)
Christopher K. Odinet, Citation: 72 Wash. & Lee L. Rev. 707 (2015)
Herbert Hovenkamp, Citation: 72 Wash. & Lee L. Rev. 653 (2015)
Nathaniel Grow, Citation: 72 Wash. & Lee L. Rev. 573 (2015)
Four monopoly sports leagues currently dominate the U.S. professional sports industry. Although federal antitrust law—the primary source of regulation governing the industry—would normally be expected to provide a significant check on anticompetitive, monopolistic behavior, it has failed to effectively govern the leagues due to both their well-entrenched monopoly status and the unique level of coordination […]
Mathilde Cohen, Citation: 72 Wash. & Lee L. Rev. 483 (2015)
Influential theories of law have celebrated judicial reason-giving as furthering a host of democratic values, including judges’ accountability, citizens’ participation in djudication, and a more accurate and transparent decision-making process. This Article has two main purposes. First, it argues that although reason-giving is important, it is often in tension with other values of the judicial […]
Jay A. Soled & Mitchell M. Gans, Citation: 72 Wash. & Lee L. Rev. 257 (2015)
For the vast majority of the twentieth century, trusts served two pivotal roles. The first was as a vehicle to help mitigate federal and state estate tax burdens, the rates of which could be quite significant. The second was to assist in asset preservation, safeguarding trust beneficiaries from their profligacy, former spouses, creditors, and the […]
David S. Rubenstein, Citation: 72 Wash. & Lee L. Rev. 171 (2015)
Federal agencies are key players in our federalist system: they make front-line decisions about the scope of federal policy and whether such policy should preempt state law. How agencies perform these functions, and how they might fulfill them better, are questions at the heart of “administrative federalism.” Some academic proposals for administrative federalism work to […]
Margo Kaplan, Citation: 72 Wash. & Lee L. Rev. 75 (2015)
This Article pushes lawmakers, courts, and scholars to reexamine the concept of pedophilia in favor of a more thoughtful and coherent approach. Legal scholarship lacks a thorough and reasoned analysis of pedophilia. Its failure to carefully consider how the law should conceptualize sexual attraction to children undermines efforts to address the myriad of criminal, public […]
Russell L. Christopher, Citation: 72 Wash. & Lee L. Rev. 3 (2015)
Are decades-long delays between sentencing and execution immune from Eighth Amendment violation because they are self-inflicted by prisoners, or is such prisoner fault for delays simply irrelevant to whether a state-imposed punishment is cruel and unusual? Typically finding delay to be the state’s responsibility, Justices Breyer and Stevens argue that execution following upwards of forty […]
Jack M. Beermann, Citation: 70 Wash. & Lee L. Rev. 3 (2013).
Unfunded employee pension obligations will present a serious fiscal problem to state and local governments in the not-toodistant future. This Article takes a look at the causes and potential cures for the public pension mess, mainly through the lens of legal doctrines that limit public employers’ ability to avoid obligations. As far as the causes […]
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).
Katherine C. Skilling, Citation: 72 Wash. & Lee L. Rev. 1077 (2015)
Katherine L. Moss, Citation: 72 Wash. & Lee L. Rev. 1033 (2015)
Alexander D. Flachsbart, Citation: Alexander D. Flachsbart, 72 Wash. & Lee L. Rev. 955 (2015)
Michael Evans, Citation: 72 Wash. & Lee L. Rev. 901 (2015)
Krystal Brunner Swendsboe, Citation: 71 Wash. & Lee L. Rev. 2659 (2014)
Daniel R. Nappier, Citation: 71 Wash. & Lee L. Rev. 2609 (2014)
Krista Consiglio, Citation: 71 Wash. & Lee L. Rev. 2557 (2014)
Amanda L. Cecil, Citation: 71 Wash. & Lee L. Rev. 2513 (2014)
Student Notes Colloquium
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).
Matthew Engle, Citation: Matthew Engle, The Prior Convictions Exception—A Comment, 72 Wash. & Lee L. Rev. 473 (2015).
Kevin Flynn, Citation: Kevin Flynn, Comment on The Prior Convictions Exception: Examining the Continuing Viability of Almendarez-Torres Under Alleyne, 72 Wash. & Lee L. Rev. 467 (2015).
Christopher B. Seaman, Citation: Christopher B. Seaman, Comment on “Groove is in the Hart”: A Workable Solution for Applying the Right of Publicity to Video Games, 72 Wash. & Lee L. Rev. 399 (2015).
Jordan M. Blanke, Citation: Jordan M. Blanke, Frank Miller’s Sin City College Football: A Game to Die For And Other Lessons About the Right of Publicity and Video Games, 72 Wash. & Lee L. Rev. 379 (2015).
The challenge of finding a workable solution for applying the right of publicity is a formidable one because it implicates not only a delicate balance between First Amendment rights and the rights of publicity, but also the complications of varying state laws. The best of the tests developed by the courts so far—the transformative use […]
Meg E. Sawyer, Citation: 72 Wash. & Lee L. Rev. 409 (2015)
R. Garrett Rice, Citation: 72 Wash. & Lee L. Rev. 317 (2015)