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Articles 1 - 30 of 6486

Full-Text Articles in Law

Faculty List Jan 2020

Faculty List

Washington University Jurisprudence Review

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Another Quest For The Holy Grail Of Law: Ius Generis - Law As A Countermovement To Human Cognition, Norbert Altvater Jan 2020

Another Quest For The Holy Grail Of Law: Ius Generis - Law As A Countermovement To Human Cognition, Norbert Altvater

Washington University Jurisprudence Review

In hopes of providing some possible further insight into the nature of law in all contexts, this Article contributes another layer to the discussion respecting an evolutionary ontology of law. It advances a preliminary sketch of the possible genesis of norms as a countermovement to human cognition, with law, as a type of norms thereby integrally interwoven into humanity itself. With this understanding of its origins, law, whether considered from the positive law, natural law or systems theory perspective, may be understood more clearly and its applications perhaps anticipated. This Article analyzes whether this proposed countermovement theory might provide common ...


The Perfect Opinion, Andrew Jensen Kerr Jan 2020

The Perfect Opinion, Andrew Jensen Kerr

Washington University Jurisprudence Review

In my Article, "The Perfect Opinion," I collate favorite judicial opinions to inductively derive an archetype of perfection. The question of which opinions we like the most is decidedly subjective, but it also reveals implied preferences for creative judging that might not register on citation counts or be prioritized when editing casebooks. Importantly, our choice of a favorite reflects something about us. So why do judges often select non-authoritative opinions (alternative concurrences or dissents) or no- citation opinions (that don’t cite to prior case law) when asked of their favorite opinion? We might predict that most judges would select ...


My Genetic Child May Not Be My Legal Child? A Functionalist Perspective On The Need For Surrogacy Equality In The United States, Rachel I. Gewurz Jan 2020

My Genetic Child May Not Be My Legal Child? A Functionalist Perspective On The Need For Surrogacy Equality In The United States, Rachel I. Gewurz

Washington University Jurisprudence Review

While assisted reproductive technology, and surrogacy in particular, may appear to be a straightforward solution to infertility, the legal field is extremely complex. The patchwork of laws across the United States leaves intended parents at risk for a court to deny legal rights to their biological child. This Note will examine the complexities of surrogacy agreements and the need for a federal, uniform surrogacy law under the sociological functionalist theory of society.


Paternalism As A Justification For Federally Regulating Advertising E-Cigarettes To Children, Alyssa N. Sheets Jan 2020

Paternalism As A Justification For Federally Regulating Advertising E-Cigarettes To Children, Alyssa N. Sheets

Washington University Jurisprudence Review

How the federal government should regulate e-cigarette advertising targeted towards children generates unique jurisprudential questions regarding the potential for infringement on children’s liberty and autonomy. While it would seem unethical to restrict e-cigarette advertisements to adults, children are in a different category because they lack the maturity and decision-making skills to discern advertising falsehoods from reality. This is especially problematic with e-cigarette advertisements because long-term public health outcomes for children are at stake. This Note assesses the historical and modern regulatory measures used by Congress, the FDA, and the judiciary to regulate how the tobacco industry may advertise to ...


Corporate Rights And Moral Theory: The Need For A Coherent Theoretical Justification Of Corporate Rights, Ryne T. Duffy Jan 2020

Corporate Rights And Moral Theory: The Need For A Coherent Theoretical Justification Of Corporate Rights, Ryne T. Duffy

Washington University Jurisprudence Review

Corporations are the primary engine of economic activity in the United States and they are provided with legal rights primarily to facilitate their productive activity. As economic actors, corporations must inevitably interact with other corporations and natural persons within the legal system. Corporations must be allowed to invoke legal rights in order to operate within the American legal system. Traditionally, the American legal system has classified corporations as legal “persons” to allow them to seamlessly integrate into the existing legal system. This Note tackles the question of corporate personhood utilizing an approach inspired by social contract theory and seeks to ...


Introduction: The Rise Of Fintech, Andrew F. Tuch Jan 2020

Introduction: The Rise Of Fintech, Andrew F. Tuch

Washington University Journal of Law & Policy

The use of technology has long accompanied the provision of financial products and services. In the late 1950s, financial institutions turned to information technology to help settle and record transactions, a burden that had grown with the surging volume of securities trades. These changes have only accelerated in recent years. Technology giants—the likes of Amazon, Apple, Facebook, and Google—are entering financial services, beginning to offer credit cards and currencies as they attempt to push more fully into retail banking. This volume of the Washington University Journal of Law and Policy examines fintech, focusing on the regulatory and other ...


The Nature Of The Fintech Firm, Howell E. Jackson Jan 2020

The Nature Of The Fintech Firm, Howell E. Jackson

Washington University Journal of Law & Policy

The title of this essay is an homage to Ronald Coase’s classic work, The Nature of the Firm. For years, Professor Coase’s article has inspired corporate theorists and earned a place in the pantheon of corporate law scholarship. In this essay, I return to The Nature of the Firmto explore the fintech revolution and the supervisory challenges that aspects of this revolution have posed for regulatory authorities. Several of the examples I discuss concern the distinction between activities located within a firm and those arranged through market transactions often supplied through new and specialized fintech entities. Two ...


Dealing With Disruption: Emerging Approaches To Fintech Regulation, Saule T. Omarova Jan 2020

Dealing With Disruption: Emerging Approaches To Fintech Regulation, Saule T. Omarova

Washington University Journal of Law & Policy

“Fintech” refers to a variety of digital assets, technologies, and infrastructure that deal with the operation of today’s financial markets. The regulation of this presents both legal and regulatory challenges. This article examines the regulatory responses to fintech disruption; specifically, the “experimentation” approach, the “incorporation” approach, and the “accommodation” approach. These approaches provide a baseline for further discussion and policy analysis in response to “Fintech.”


Building Fintech Ecosystems: Regulatory Sandboxes, Innovation Hubs And Beyond, Ross P. Buckley, Dougles Arner, Robin Veidt, Dirk Zetzsche Jan 2020

Building Fintech Ecosystems: Regulatory Sandboxes, Innovation Hubs And Beyond, Ross P. Buckley, Dougles Arner, Robin Veidt, Dirk Zetzsche

Washington University Journal of Law & Policy

Around the world, regulators and policymakers are working to support the development of financial technology (FinTech) ecosystems. As one example, more than fifty jurisdictions have now established or announced “financial regulatory sandboxes.” Others have announced or established “innovation hubs,” sometimes incorporating a regulatory sandbox as one element. This article argues that innovation hubs provide all the benefits that the policy discussion associates with regulatory sandboxes, while avoiding most downsides of regulatory sandboxes, and that many benefits typically attributed to sandboxes are the result of inconsistent terminology, and actually accrue from the work of innovation hubs. The paper presents, as the ...


Regulation By Selective Enforcement: The Sec And Initial Coin Offerings, James J. Park, Howard H. Park Jan 2020

Regulation By Selective Enforcement: The Sec And Initial Coin Offerings, James J. Park, Howard H. Park

Washington University Journal of Law & Policy

The Securities and Exchange Commission regulates the securities markets. However, Initial Coin Offerings (ICOs) do not require the usual disclosure to the Securities and Exchange Commission when securities are sold to the public. Prior to ICOs, courts typically used the Supreme Court’s Howeytest to determine whether an investment is a security. The vagueness of this test resulted in the Securities and Exchange Commission using Regulation by Selective Enforcement. In selecting significant actions, the Securities and Exchange Commission has been able to publicize cases with facts favorable to treating ICOs as securities. Regulation by Selective Enforcement has successfully established ...


Embrace The Sec, Usha R. Rodrigues Jan 2020

Embrace The Sec, Usha R. Rodrigues

Washington University Journal of Law & Policy

Securities law traditionally only permits corporations that have registered with the Securities and Exchange Commission (SEC)and completed an initial public offering (IPO) to sell equity to the general public—often a long, expensive process. The initial coin offering (ICO) emerged in 2013 as a fundraising tool private blockchain-based companies have used over the past several years to raise billions of dollars, seeking to circumvent registration with the SEC and the public offering process altogether. But their early success brought the attention of the SEC, and in 2017 the SEC clearly asserted the right to regulate ICOs. Since then U ...


Crowdfunding Issuers In The United States, Andrew A. Schwartz Jan 2020

Crowdfunding Issuers In The United States, Andrew A. Schwartz

Washington University Journal of Law & Policy

Equity crowdfunding allows startup companies to sell shares of stock, bonds or other securities to the public using online capital markets. This allows entrepreneurs to avoid the costly process of a traditional IPO. Equity crowdfunding started in America in May 2016. This article explores the types of companies that utilize equity crowdfunding, and finds that most issuers are early-stage companies; most are corporations; there is significant geographic diversity amongst the issuers, and twenty-eight percent of issuers are female-founded or female led, which is much higher than in venture capital or angel investing.


Smart Contracts And The Illusion Of Automated Enforcement, Danielle D'Onfro Jan 2020

Smart Contracts And The Illusion Of Automated Enforcement, Danielle D'Onfro

Washington University Journal of Law & Policy

This Essay explores the barriers to deploying smart contracts in the consumer finance space: the humans themselves, existing consumer protection laws, and the other businesses which have financial contracts with consumers but that cannot deploy smart contracts. These three barriers render perfectly automated enforcement all but impossible. Nevertheless, there may be room for modifiable smart contracts in the consumer finance space – although these contracts may be only marginally more efficient than traditional contracts.


Stable Cryptocurrencies, Craig Calcaterra, Wulf A. Kaal, Vadhindran Rao Jan 2020

Stable Cryptocurrencies, Craig Calcaterra, Wulf A. Kaal, Vadhindran Rao

Washington University Journal of Law & Policy

The authors examine the emergence and proliferation of stable cryptocurrencies and their uses. After evaluating the core shortcomings associated with fiat currencies, the authors highlight the benefits of stable cryptocurrencies for monetary policy making, overall market stability, and their bilateral impact on the emergence of decentralized commerce. The transition to digital currencies has already started. It is a matter of time until the use cases and applications of stable cryptocurrencies become more mainstream.


What Regulatory Problems Arise When Fintech Lending Expands Into Fledgling Credit Markets?, Jonathan Greenacre Jan 2020

What Regulatory Problems Arise When Fintech Lending Expands Into Fledgling Credit Markets?, Jonathan Greenacre

Washington University Journal of Law & Policy

This article argues that when moving into fledgling credit markets – namely communities in which a significant portion of the population has never had access to formal consumer loans – fintech lending can cause significant adverse economic consequences to the public and create significant regulatory gaps that require addressing. These economic consequences include inaccurate risk-pricing as firms determine how to accurately process and use the range of information at their disposal, as well as, potential behavioral problems leading to widespread default as members of low-income communities, particularly those without a bank account (the so-called ‘unbanked’), access formal credit for the first time ...


Impact Of Criminal Justice Debt On Indigent Defendants, Elizabeth Forester Jan 2020

Impact Of Criminal Justice Debt On Indigent Defendants, Elizabeth Forester

Washington University Journal of Law & Policy

This Note explores the constitutional and policy concerns surrounding criminal justice debt and the ability of indigent defendants to reintegrate into society. After examining the history of legal financial obligations (“LFOs”) in the United States, and the current state of LFOs in Tennessee, the Note focuses on three reforms: reinstating driver’s licenses for those who have had their licenses revoked for failure to pay court fees, creating a more transparent accounting process of such debt, and dedicating more resources to public defender’s offices and others who aid ex-offenders.


Chipping Away At Workplace Privacy: The Implantation Of Rfid Microchips And Erosion Of Employee Privacy, Wes Turner Jan 2020

Chipping Away At Workplace Privacy: The Implantation Of Rfid Microchips And Erosion Of Employee Privacy, Wes Turner

Washington University Journal of Law & Policy

With the advent of new technologies and workplace policies, employees have lowered expectations of privacy. These technologies and policies include the implantation of microchips in employees; bring your own device to work policies; and wearable technologies. The lack of both state and federal statutes to protect employees means that employees have few methods to redress their privacy concerns. To protect their privacy rights, employees should use a collectivist approach to bargain with their employers for such rights.


Modern-Day Apartheid In Missouri: How Massey V. Normandy Schools Collaborative Overlooks De Facto Segregation Created By Missouri's School Accreditation Classification System, Kyla Vick Jan 2020

Modern-Day Apartheid In Missouri: How Massey V. Normandy Schools Collaborative Overlooks De Facto Segregation Created By Missouri's School Accreditation Classification System, Kyla Vick

Washington University Journal of Law & Policy

The Missouri School Transfer Statute allows students in unaccredited districts the option to transfer to a school in an accredited district at the expense of the unaccredited district. In Massey v. Normandy Schools Collaborative, the Court of Appeals for the Eastern District of Missouri held that the Missouri Department of Elementary and Secondary Education exceeded its authority when it classified the Normandy School district as a state-oversight district when it had previously been classified as unaccredited. However, the decision in Massey does not go far enough as the effect of these Missouri public education policies is a modern-day apartheid school ...


On The Judicialization Of Health, Ana Santos Rutschman Jan 2019

On The Judicialization Of Health, Ana Santos Rutschman

Washington University Global Studies Law Review

The provision of health care has long been at the forefront of domestic and international debates, philosophical inquiries, and political agendas. A growing body of legal scholarship has added to the debate by examining the role of judicial review in the context of health-related litigation. What role, if any, should courts play in compelling the provision of health care or in furthering access to potentially life-saving medicines?

This question intersects with multiple strands of the law. For instance, it has an institutional component that interrogates the function(s) of courts within systems of checks and balances. It ties into constitutional ...


Domestic Decisions And Foreign Fragility: Injuries Abroad And The Federal Tort Claims Act, Robert Galloway Jan 2019

Domestic Decisions And Foreign Fragility: Injuries Abroad And The Federal Tort Claims Act, Robert Galloway

Washington University Journal of Law & Policy

This note assesses recent developments in the case law related to the Foreign Country Exception to the Federal Tort Claims Act (FTCA). While the FTCA generally waives sovereign immunity the Federal Country Exception retains said immunity for claims “arising in a foreign country.” The Note considers a recent case where a Peace Corps volunteer was denied an effective remedy because of the Foreign Country Exception. In response, the Note argues courts should adopt the test argued for by Justice Ginsburg in Sosa v. Alvarez-Machain in determining whether a claim falls under the Foreign Country Exception.


100% All Natural Ambiguity: A Comparative Approach To Food Labeling Requirements For The Term “Natural” By The Food And Drug Administration And The European Union, Andréa Maehara Jan 2019

100% All Natural Ambiguity: A Comparative Approach To Food Labeling Requirements For The Term “Natural” By The Food And Drug Administration And The European Union, Andréa Maehara

Washington University Global Studies Law Review

Despite being the only regulatory agency empowered to establish definitions for food product labeling, the Food and Drug Administration (FDA) has not formally defined the term “natural.” The FDA’s reluctance to fully define the term increases consumer distrustful of the FDA as a regulatory body and has also led to a dramatic increase in class action lawsuits against major food corporations. This Note will argue that the FDA should issue a formal definition in order to standardize usage of “natural” on food labeling by incorporating the European Union (EU)’s approach. First, this Note will examine the origins of ...


Missouri’S Taxation Of Remote Sellers In A Post-Wayfair World, Charles L. Merriweather, John T.M. Whiteman Jan 2019

Missouri’S Taxation Of Remote Sellers In A Post-Wayfair World, Charles L. Merriweather, John T.M. Whiteman

Washington University Journal of Law & Policy

In this paper the authors consider the impact of the Wayfair decision on the state of Missouri. The authors – two members of the Missouri Department of Revenue – consider especially the unique implications Wayfair has to a state such as Missouri that is not a member of the SSUTA. It further surveys responses being developed by the state legislature.


The State-Charity Disparity And The 2017 Tax Law, Daniel Hemel Jan 2019

The State-Charity Disparity And The 2017 Tax Law, Daniel Hemel

Washington University Journal of Law & Policy

This is an edited version of a speech given at the state tax symposium. The author first gives an overview of how the 2017 tax bill changed the treatment of state and local taxes which are no longer deductible to the extent said taxes exceed $10,000. The author then contrasts this to the treatment of charitable contributions which remain deductible. The author considers the similar functions undertaken by charities and state governments and concludes there is little justification for their divergent treatment.


Alcohol Taxation And Child Maltreatment, Michael Mclaughlin Jan 2019

Alcohol Taxation And Child Maltreatment, Michael Mclaughlin

Washington University Journal of Law & Policy

Several decades of research have demonstrated that alcohol tax rates are related to a number of alcohol-related harms, including drunk driving, crime, and femicide. However, there is very limited research on the relationship between alcohol taxes and child maltreatment. Two studies examine the effects of beer taxes on physical child abuse, but no research has been done on other types of alcohol taxes or other child maltreatment subtypes. This study performs a comprehensive analysis to assess whether taxes on beer, wine, and spirits are linked to child maltreatment and its various subtypes. A fixed-effects analysis of state-level panel data from ...


A Tool For Improving Mediations: Informed Pairings And Predictive Outcomes, Shaphan Roberts Jan 2019

A Tool For Improving Mediations: Informed Pairings And Predictive Outcomes, Shaphan Roberts

Washington University Journal of Law & Policy

This paper examines the Community Police Unification Program (“CPU”), a collaboration between the Los Angeles Police Department (“LAPD”) and the Los Angeles City Attorney’s office that offers a tool for effectively pairing mediators to cases. First, this paper briefly explores the need for such a mediation program to facilitate communication between LAPD and the community it serves. The paper then explores the uniqueness of CPU cases and the need for correctly pairing mediators. Finally, the paper discusses the strengths, weaknesses and areas for improvement when developing a pairing tool for such a program.


Reconciling The Ministerial Exception And Title Vii: Clarifying The Employer’S Burden For The Ministerial Exception, Amy Dygert Jan 2019

Reconciling The Ministerial Exception And Title Vii: Clarifying The Employer’S Burden For The Ministerial Exception, Amy Dygert

Washington University Journal of Law & Policy

This note considers the consequences of the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church and Sch. v. Equal Emp’t Opportunity Comm’n. In Hosanna-Tabor a unanimous Court declared the Constitution prevents federal non-discrimination law from being applied to “ministers.” However, the Court did not define the term minister. This note summarizes lower court decisions attempting to define this term. Building on these decisions the author proposes a three-prong test for determining whether a church employee should be classified as a minister.


Gun Violence And U.S. Obligations Under The Inter- American System For The Protection Of Human Rights, Christina M. Cerna Jan 2019

Gun Violence And U.S. Obligations Under The Inter- American System For The Protection Of Human Rights, Christina M. Cerna

Washington University Journal of Law & Policy

This article discusses the human rights aspects of gun violence from the perspective of the Organization of American States. The article explains the history, structure, and procedure of the OAS body that is charged with reviewing allegations of deprivations of human rights. Because exhaustion of claims at the national level is not required when the national law does not recognize a certain claim, the article argues that American victims of gun violence should be able to proceed directly to the international tribunal. In order for this to occur, the U.S. would need to ratify a treaty assenting to such ...


The Strange Story Of The Second Amendment In The Federal Courts, And Why It Matters, Lee Epstein, David T. Konig Jan 2019

The Strange Story Of The Second Amendment In The Federal Courts, And Why It Matters, Lee Epstein, David T. Konig

Washington University Journal of Law & Policy

This article describes the shift in judicial interpretation of the Second Amendment. The article undertakes a statistical analysis of each of the 261 federal court decisions interpreting the Second Amendment in the decades following the Supreme Court’s first interpretation of it in 1872 and its most recent interpretations in 2008 and 2010. Until 2008, the judicial consensus was that the Second Amendment operates only to prevent the federal government from restricting firearms possession. The article traces the ascendance in recent decades of the view that the amendment actually protects an individual right against infringement by either the state or ...


Lock ‘Em Up And Set Them Free?: How To Reconcile Tough-On-Crime Sentencing Policies With Justice Reinvestment In Maryland, Daniel G. Solomon Jan 2019

Lock ‘Em Up And Set Them Free?: How To Reconcile Tough-On-Crime Sentencing Policies With Justice Reinvestment In Maryland, Daniel G. Solomon

Washington University Journal of Law & Policy

This note examines two pieces of contemporaneously enacted criminal justice legislation in Maryland: one law reflecting a tough-on-crime approach, and another aimed at reducing over-incarceration. The note addresses various policy arguments in favor of and against each piece of legislation, against the backdrop of relatively high rates of crime in Baltimore. The note ultimately endorses the legislation that increased incarceration periods for certain offenses, but argues that this legislation should be paired with even more robust legislation to combat over-incarceration than Maryland currently has.