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Washington University in St. Louis

Washington University Journal of Law & Policy

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Full-Text Articles in Law

A Conversation On Building Resilience And Protecting Children: An Evidence-Based Family Strengthening Approach, Mary M. Mckay, Mary Acri Jan 2018

A Conversation On Building Resilience And Protecting Children: An Evidence-Based Family Strengthening Approach, Mary M. Mckay, Mary Acri

Washington University Journal of Law & Policy

This Article summarizes a presentation to child mental health scientists, child development experts, neuroscientists, and child health practitioners at a 2017 conference entitled “The Developing Brain: New Directions in Science, Policy, and Law.” We presented an evidence-based approach to strengthening families, referred to as the “4Rs and 2Ss Family Strengthening Program,” as an option for protecting children and enhancing their overall development. We presented data that found child and family outcomes, including child behavior regulation and functioning, and parent depression and stress, improved among families who participated in the intervention. We also found several intervention innovations that were developed as ...


Bringing Science To Law And Policy: Panel Discussion, Bradley Schlaggar, Katie Plax, Susan Block, Timothy Mcbride, Jill Schupp, Deanna Barch Jan 2018

Bringing Science To Law And Policy: Panel Discussion, Bradley Schlaggar, Katie Plax, Susan Block, Timothy Mcbride, Jill Schupp, Deanna Barch

Washington University Journal of Law & Policy

How should law and policy chance, based on our current understanding of brain development? In turn, how can neuroscientists undertake research that would prove most useful in influencing law and policy? Such questions about the intersection of science, law, and policy provided the focus of a transdisciplinary conversations, led by Dr. Deanna Barch. Participants – physicians, an attorney and former Family Court judge, a state legislator, and a health economist – recounted their own experiences and recommendations with a view to bringing traditional divides and actualizing ideas from this conference and symposium, “The Developing Brain.”


Kokesh Footnote Three Notwithstanding: The Future Of The Disgorgement Penalty In Sec Cases, Stephen M. Bainbridge Jan 2018

Kokesh Footnote Three Notwithstanding: The Future Of The Disgorgement Penalty In Sec Cases, Stephen M. Bainbridge

Washington University Journal of Law & Policy

This article, by Professor William D. Warren of UCLA School of Law, analyzes Kokesh v. SEC where the Supreme Court held that disgorgement – a tool used by the SEC to recover ill-gotten gains through the courts – was a penalty rather than a remedy for the purposes of determining the appropriate statute of limitations. Warren contends that Kokesh raises questions about the validity of disgorgement as a sanction, especially considering issues of SEC authority, judicial power, and interstitial lawmaking.


The Road Not Taken: A Comparison Of The E.U. And U.S. Insider Trading Prohibitions, Franklin A. Gevurtz Jan 2018

The Road Not Taken: A Comparison Of The E.U. And U.S. Insider Trading Prohibitions, Franklin A. Gevurtz

Washington University Journal of Law & Policy

This article, by Professor Franklin A. Gevurtz of the University of the Pacific’s McGeorge School of Law, explores the divergent approaches between the United States and the European Union with respect to the reach of insider trading laws. Finding that the current scope of E.U. law on insider trading is substantially similar to pre-1980 U.S. Law, Gevurtz compares the outcomes of similar high-profile U.S. and E.U. insider trading cases to illustrate just how different the outcomes are and where the U.S. would be had the Supreme Court kept a broad view on the law ...


Tipper/Tippee Insider Trading As Unlawful Deceptive Conduct: Insider Gifts Of Material Nonpublic Information To Strangers, Joan Macleod Heminway Jan 2018

Tipper/Tippee Insider Trading As Unlawful Deceptive Conduct: Insider Gifts Of Material Nonpublic Information To Strangers, Joan Macleod Heminway

Washington University Journal of Law & Policy

This article, by Joan MacLeod Heminway of The University of Tennessee College of Law, explores the “Robin Hood scenario” as it applies to insider trading law and whether a fiduciary violates the law when acting under pure altruism. Through an exploration of the functions of improper information sharing, the theoretical underpinnings of academic literature, and the link between theory and statute, Heminway cast doubt on the laws applicability to insider trading cases involving intentional unauthorized sharing of material nonpublic information by a fiduciary with a stranger for purely altruistic purposes.


Insider Information And The Limits Of Insider Trading, Yesha Yadav Jan 2018

Insider Information And The Limits Of Insider Trading, Yesha Yadav

Washington University Journal of Law & Policy

This article, by Professor Yesha Yadav of Vanderbilt Law School, examines modern information flows by which securities are bought and sold and argues that the instantaneous processing of market information by high-frequency trading institutionalizes a group of “structural insiders” who can take advantage of information earlier than those on the outside. Yadav analogizes the advantages enjoyed by these structural insiders to those found in the context of corporate insider trading and asks why each is subject to different treatment under the law.


Starting A Conversation Or Sending A Message: The Uses & Abuses Of State Anti-Bds Speech, Danielle Haberer Jan 2018

Starting A Conversation Or Sending A Message: The Uses & Abuses Of State Anti-Bds Speech, Danielle Haberer

Washington University Journal of Law & Policy

This note explores the language used by state actors through legislation and executive orders responding to the Boycott, Divestment, and Sanctions (BDS) movement. While the constitutionality of such laws has been questioned, Haberer argues the debate should focus on state speakers’ social and civic duty to welcome conversation rather than to send a specific message against the BDS movement. Haberer suggests that state speech can be improved in this area by avoiding problematic tactics such as “conversation stoppers” and aggressive, militarized language.


We Want Wi-Fi: The Fcc’S Intervention In Municipal Broadband Networks, Catherine L. Schwarze Jan 2018

We Want Wi-Fi: The Fcc’S Intervention In Municipal Broadband Networks, Catherine L. Schwarze

Washington University Journal of Law & Policy

This note examines a Sixth Circuit ruling against the Federal Communication Commission which found that North Carolina and Tennessee had the authority to limit expansion of municipal broadband services. Schwarze argues that Tennessee v. FCC greatly interferes with the mission of the FCC to spread communications access and proposes a solution by way of a partnership among state governments, municipalities, and private broadband companies to increase access to high-speed internet to areas that lack such services.


From Door To Desk(Top): The Portal-To-Portal Act In The Digital Age, Colin Pajda Jan 2018

From Door To Desk(Top): The Portal-To-Portal Act In The Digital Age, Colin Pajda

Washington University Journal of Law & Policy

This note examines wage and hour litigation in the context of booting up and shutting down computers in call centers and the problem of analogizing physical work to digital work under the Fair Labor Standards Act. Pajda argues that by viewing computers as workplaces rather than tools for the purposes of determining whether booting up and shutting down computers are compensable workplace activities, courts can bypass the fact intensive inquiry on whether these actions are “integral and indispensable” to the work of the employee and provide clear guidelines to employers on what needs to be compensated. Pajda further argues that ...


Title Page Jan 2018

Title Page

Washington University Journal of Law & Policy

No abstract provided.


A Role Of Early Life Stress On Subsequent Brain And Behavioral Development, Damien A. Fair, Alice M. Graham, Brian Mills Jan 2018

A Role Of Early Life Stress On Subsequent Brain And Behavioral Development, Damien A. Fair, Alice M. Graham, Brian Mills

Washington University Journal of Law & Policy

The prevalence of pediatric neuropsychiatric disorders has risen dramatically during the past two decades. A study surveying the years 1997-2008 verified that one in six children have a developmental disability – a number on the rise. Along similar lines, studies show higher incidents of criminal activity, substance use disorders, and the emergence of psychopathologies in early adolescence and young adulthood, which are particularly sensitive periods of brain and behavioral maturation. While developmental trajectories that may lead to adverse outcomes in youth are the result of a mix of genetics and environmental exposure, it is becoming clearer that they do not start ...


Early Life Impacts On Later Life Health And Economic Outcomes, Diane Whitmore Schanzenbach Jan 2018

Early Life Impacts On Later Life Health And Economic Outcomes, Diane Whitmore Schanzenbach

Washington University Journal of Law & Policy

In this article, Diane Whitmore Schanzenbach explores how access to the Supplemental Nutrition Assistance Program (SNAP) not only contributes to better health outcomes for children, but also better health and economic outcomes later in life. Notably, Schanzenbach finds that these impacts are greater when SNAP is available during the in-utero period of childhood development and taper off when introduced at later stages – indicating that SNAP may be having an impact on childhood brain development. Schanzenbach points to the broader implications of these findings by asserting that early childhood investment has a more significant long-term economic impact than is currently understood ...


The Developing Brain: New Directions In Science, Policy, And Law, Susan Frelich Appleton, Deanna M. Barch, Anneliese M. Schaefer Jan 2018

The Developing Brain: New Directions In Science, Policy, And Law, Susan Frelich Appleton, Deanna M. Barch, Anneliese M. Schaefer

Washington University Journal of Law & Policy

No abstract provided.


Brain Development, Social Context, And Justice Policy, Elizabeth Scott, Natasha Duell, Laurence Steinberg Jan 2018

Brain Development, Social Context, And Justice Policy, Elizabeth Scott, Natasha Duell, Laurence Steinberg

Washington University Journal of Law & Policy

This article examines the role played by biological and psychological factors associated with adolescent criminal activity in the context of justice policy reform and its critics. Scott, Duell, and Steinberg assert that risk-taking behavior in adolescence is not solely associated with biological and psychological immaturity, but rather exists as a dynamic interaction between those factors and the individual social context. This interactive model of juvenile offending supports the trend of treating juveniles differently than adults in the criminal justice system and clarifies how correctional programs are crucial in either undermining or promoting healthy development in adolescents.


The Ingredients Of Healthy Brain And Child Development, Pat Levitt, Kathie L. Eagleson Jan 2018

The Ingredients Of Healthy Brain And Child Development, Pat Levitt, Kathie L. Eagleson

Washington University Journal of Law & Policy

This article by Pat Levitt and Kathie L. Eagleson explains critical developmental stages in early childhood and adolescent brain development. Levitt and Eagleson start by dispelling certain misconceptions about early brain development and then examining the interaction between biological events, social and emotional development, and the role played by early childhood experiences in healthy brain development. Finally, the article discusses the importance of intervention programs on healthy brain development and positive child, adolescent, and adult outcomes.


Extending Employee Protections To Gig-Economy Workers Through The Entrepreneurial Opportunity Test Of Fedex Home Delivery, Peter Gibbins Jan 2018

Extending Employee Protections To Gig-Economy Workers Through The Entrepreneurial Opportunity Test Of Fedex Home Delivery, Peter Gibbins

Washington University Journal of Law & Policy

This note by Peter Gibbins explores the legal challenges both companies and workers face in the “gig-economy” – the digital marketplace of companies like Uber, Lyft, Taskrabbit, and more. Specifically, Gibbins highlights the problems inherent in classifying workers as “independent contractors” as opposed to employees. The classification of “independent contractor” significantly limits the rights and protections workers receive, while providing companies flexibility and increased savings by reducing or eliminating employee benefits. While unionization may help workers negotiate better working conditions, pay, and benefits, independent contractors attempting to organize face significant legal hurdles under the National Labor Relations Act and antitrust laws ...


Justice In The Jury: The Benefits Of Allowing Felons To Serve On Juries In Criminal Proceedings, Sharion Scott Jan 2018

Justice In The Jury: The Benefits Of Allowing Felons To Serve On Juries In Criminal Proceedings, Sharion Scott

Washington University Journal of Law & Policy

This note by Sharion Scott highlights an often-ignored remnant of the old common law concept of civil death wherein a felony conviction carried with it the revocation of civil rights long after a sentence was served. Specifically, Scott points to the fact that thirty-one states exclude felons from serving on juries. Scott argues that where a disproportionate number of incarcerated people are black, the practice of excluding felons from jury duty perpetuates the underrepresentation of minorities on juries and exacerbates jury bias. Scott argues that jury service should be open to felony offenders who have completed their sentences and desire ...


Sanctioned Unemployment: The Impact Of Occupational Licensing Restrictions On Exoffenders, Annie Zhang Jan 2018

Sanctioned Unemployment: The Impact Of Occupational Licensing Restrictions On Exoffenders, Annie Zhang

Washington University Journal of Law & Policy

This note by Annie Zhang explores how occupational licensing restrictions on ex-offenders create a significant barrier to employment that undermines efforts to rehabilitate offenders and reduce recidivism. Zhang notes that these restrictions are particularly burdensome when they apply to low-income occupations like barbering and cosmetology and proposes that licensing boards be required to consider rehabilitation factors in assessing licensing applications, a direct connection between the conviction and the licensed occupation, and a presumption of licensure for ex-offenders that have completed their vocational training at a correctional facility.


The Fiduciary Principle Of Insider Trading Needs Revision, Roberta S. Karmel Jan 2018

The Fiduciary Principle Of Insider Trading Needs Revision, Roberta S. Karmel

Washington University Journal of Law & Policy

This article, by former Commissioner of the SEC, Co-Director of the Dennis J. Block Center for the Study of International Business, and Professor at Brooklyn Law School Roberta S. Karmel, argues that the misappropriation doctrine of insider trading law, introduced in Chiarella v. United States, is unsound. Karmel argues that the doctrine has been misapplied to cases where defendants did not steal information belonging to others and in cases where defendants based their trading on an independent investigation of facts. In addition, Karmel highlights the difficulty in distinguishing legitimate research by industry professionals and insider information. Further, Karmel finds that ...


Insider Trading And The Myth Of Market Confidence, John P. Anderson Jan 2018

Insider Trading And The Myth Of Market Confidence, John P. Anderson

Washington University Journal of Law & Policy

This article, by Professor John P. Anderson of Mississippi College School of Law, challenges the market-confidence justification for insider trading regulations by questioning its sociopsychological impact and assessing empirical evidence. Anderson finds that public perception surrounding insider trading and its effect on the market raises a problem of false consciousness – whether the perception is true or false, the market impact is the same. Further, Anderson finds that empirical evidence on the impact of public perception of insider trading on the market is inconclusive and that a proper test is likely unfalsifiable. Finally, Anderson cautions against a reliance on the market-confidence ...


Native Advertising In Social Media: Is The Ftc’S “Reasonable Consumer” Reasonable?, Celine Shirooni Jan 2018

Native Advertising In Social Media: Is The Ftc’S “Reasonable Consumer” Reasonable?, Celine Shirooni

Washington University Journal of Law & Policy

This note explores native advertising – advertising that has a semblance of editorial content – on social media how the Federal Trade Commission has struggled to address concerns about the ethical implications of the practice. Shirooni argues that the “reasonable consumer” test used by the FTC to determine whether an advertisement is deceptive is both outdated and too broad in the context of social media and proposes a modification of the test to fit the expectations of the typical user of social media applications.


“Maximalism With An Experimental Twist”: Insider Trading Law At The Supreme Court, Zachary J. Gubler Jan 2018

“Maximalism With An Experimental Twist”: Insider Trading Law At The Supreme Court, Zachary J. Gubler

Washington University Journal of Law & Policy

This article, by Professor Zachary J. Gubler of Arizona State University’s Sandra Day O’Connor College of Law, examines the shape of the Supreme Court’s insider trading jurisprudence. Gubler argues that the Court ought to adopt an approach of “maximalism with an experimental twist” – a combination of broad-based opinions that go beyond the facts of a particular case, as well as a standards-based approach to assessing policy assumptions of the lower courts. Gubler uses this framework to evaluate the Court’s insider trading jurisprudence and argues that the Roberts Court missed an opportunity in Salman v. United States ...


Making Up Insider Trading Law As You Go, Peter J. Henning Jan 2018

Making Up Insider Trading Law As You Go, Peter J. Henning

Washington University Journal of Law & Policy

This article, by Professor Peter J. Henning of the Wayne State University Law School, analyzes the haphazard development of insider trading law in the courts. Henning argues that despite Congressional inaction and little by the way of SEC rulemaking, the judiciary has developed a fairly stable set of rules prohibiting insider trading. Henning argues that Salman v. United States demonstrates the Supreme Court’s satisfaction with, or at least apathy to, the current approach in this area of the law. Finally, Henning suggests that without additional political impetus, Congress is unlikely to step in to clarify insider trading law, thus ...


Addressing The Psychosocial Risk Factors Affecting The Developing Brain Of The High-Risk Infant, Cynthia Rogers Jan 2018

Addressing The Psychosocial Risk Factors Affecting The Developing Brain Of The High-Risk Infant, Cynthia Rogers

Washington University Journal of Law & Policy

In this article, Cynthia Rogers examines how exposure to prenatal and postnatal psychosocial stressors in the caregiver-infant interaction can lead to impaired brain development. Specifically, Rogers examines how maternal mental health and substance use disorders related to poverty have a deleterious effect on infant outcomes and create dysfunctional parenting styles that continue to negatively impact childhood brain development. Rogers points to intervention programs like the Perinatal Behavioral Health Service at Washington University School of Medicine as a successful tool for screening pregnant and postpartum women for mental health disorders and directing parents of high-risk infants to physicians, social workers, psychiatrists ...


Discriminatorybnb: A Discussion Of Airbnb’S Race Problem, Its New Anti-Discrimination Policies, And The Need For External Regulation, Jason Mccloskey Jan 2018

Discriminatorybnb: A Discussion Of Airbnb’S Race Problem, Its New Anti-Discrimination Policies, And The Need For External Regulation, Jason Mccloskey

Washington University Journal of Law & Policy

In this note, Jason McCloskey examines the issue of discrimination in the peer-to-peer short-term rental marketplace. Specifically, McCloskey examines Airbnb’s struggles with discrimination and the implementation of its new anti-discrimination policy. While it is yet to be seen whether the new policy is anything more than a hollow public relations move, McCloskey argues that more must be done to combat discrimination in Airbnb’s rental market. To hold Airbnb to its promise to be more inclusive, McCloskey argues that legislation at both the federal and state level that holds Airbnb liable for the action of its hosts is needed ...


What We Want In A Judge, T. J. Mullin Jan 2017

What We Want In A Judge, T. J. Mullin

Washington University Journal of Law & Policy

This Article recognizes the current state of bankruptcy courts and the qualities that make Judge Barry Schermer a quintessential figure in adjudicating these types of cases. Mullin describes important qualities needed in a bankruptcy judge including morality and integrity, as well as versatility and predictability, among others. The Author confirms these qualities in Judge Schermer, as well the additional qualities of patience and the ability to reverse a decision he feels was incorrect.


Barry S. Schermer: Lessons In Life And Law, Tom K. O'Loughlin Ii Jan 2017

Barry S. Schermer: Lessons In Life And Law, Tom K. O'Loughlin Ii

Washington University Journal of Law & Policy

The Article recounts some judicial and life lessons attributed to Judge Barry Schermer. O’Loughlin recounts his initial and subsequent interactions with Judge Schermer in Cape Girardeau, Missouri, and how these moments have shown the Author a bevvy of important things to keep in mind in his practice.


Barry Schermer: His Consumer Bankruptcy Greatest Hits, Wendell J. Sherk, Kathy A. Surratt-States Jan 2017

Barry Schermer: His Consumer Bankruptcy Greatest Hits, Wendell J. Sherk, Kathy A. Surratt-States

Washington University Journal of Law & Policy

This Article reflects on major decisions given by Judge Barry Schermer in the field of consumer bankruptcy. Sherk and Surrat-States focus on In re Copman, In re Wilmsmeyer, In re Mitchell, and In re Long, and how Judge Schermer’s decisions and influence were helpful within and beyond the Eastern District of Missouri Bankruptcy Court. The Article concludes Judger Schermer has had an important role in shaping the niche are of consumer bankruptcy law over his thirty years of tenure.


Judge Schermer And The Creation Of The United States Bankruptcy Appellate Panel For The Eighth Circuit, Robert J. Kressel Jan 2017

Judge Schermer And The Creation Of The United States Bankruptcy Appellate Panel For The Eighth Circuit, Robert J. Kressel

Washington University Journal of Law & Policy

This Article examines the influence Judge Barry Schermer had on the then-newly created United States Bankruptcy Appellate Panel for the Eighth Circuit. Judge Kressel begins by noting the unique role the Appellate Panel has, as it has concurrent jurisdiction with the district court of appeals from the bankruptcy courts in the circuit, and not all circuits have these panels. The Author concludes Schermer’s dedication to bankruptcy law helped shape the roles of these panels, which is further suggested by Judge Schermer’s recent appointment to a fourth seven-year term in this role.


How Not To Use The Involuntary Bankruptcy Process, Michael A. Friedman Esq., Allison R. Day Jan 2017

How Not To Use The Involuntary Bankruptcy Process, Michael A. Friedman Esq., Allison R. Day

Washington University Journal of Law & Policy

This Article evaluates the issues arising under 11 U.S.C. § 303, which governs involuntary bankruptcies. The Authors being by presenting an overview of commencing an involuntary bankruptcy case, as highlighted by the lengthy litigation inspired by Rosenberg v. DVI Receivable XVII, LLC and its dismissal. The Article concludes that the current state of § 303 can open additional litigation replete with costs, awards, fees, and other bad-faith damages, and creditors should exercise caution before pursuing involuntary bankruptcy, especially it it’s likely to fair for meeting the statutory requirements.