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Washington University in St. Louis

Washington University Journal of Law & Policy

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Full-Text Articles in Law

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 ...


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.


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.


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 ...


Introduction: Celebrating 150 Years Of Women At Washulaw, Nancy Staudt Jan 2020

Introduction: Celebrating 150 Years Of Women At Washulaw, Nancy Staudt

Washington University Journal of Law & Policy

Generations of women have helped make Washington University School of Law one of the most exciting places to study, learn, and research in the world. To celebrate these contributions, WashULaw hosted a year-long celebration of its women. Led by Professor Rebecca Hollander-Blumoff, the “Year of the Woman” included a special speaker series, banners across campus, small group meetings, and most importantly a feeling of excitement and awe across campus for the many accomplishments that WashULaw women have achieved over the past 150 years. This historic milestone cements the institutional stature of the law school, and highlights its well-earned reputation as ...


Reforming The International Criminal Court: "Lean In" Or "Leave", Leila Nadya Sadat Jan 2020

Reforming The International Criminal Court: "Lean In" Or "Leave", Leila Nadya Sadat

Washington University Journal of Law & Policy

The International Criminal Court, established by statute by 120 states in 1998, is charged with bringing the rule of law into some of the most difficult and dangerous situations in the world. From its inception, it has faced criticism; however, now a “Leave” campaign has emerged. This Article argues that instead of this campaign, scholars and political leaders should lean in to bring about reforms in a constructive manner.


Sexual Violence, The Principle Of Legality, And The Trial Of Hissène Habré, Kim Thuy Seelinger, Naomi Fenwick, Khaled Alrabe Jan 2020

Sexual Violence, The Principle Of Legality, And The Trial Of Hissène Habré, Kim Thuy Seelinger, Naomi Fenwick, Khaled Alrabe

Washington University Journal of Law & Policy

The appeals panel of the Extraordinary African Chambers in the Courts of Senegal upheld the former president of Chad’s, Hissène Habré’s, conviction for war crimes, crimes against humanity, and acts of torture. This ruling stands out as the trial court’s convictions included rape and sexual slavery as crimes against humanity, which observers hailed as a tremendous victory for international criminal justice and rights of sexual violence survivors. Specifically, in Habré’s case, the determination turned on whether the crimes were considered violations of international law at the times they were committed. Using historical examples from various tribunals ...


All But The Rarest Of Children: Miller And Montgomery's Implicit Ban On Victim And Community Impact Testimony In Juvenile Life Without Parole Sentencing, Allison M. Scoggin Jan 2020

All But The Rarest Of Children: Miller And Montgomery's Implicit Ban On Victim And Community Impact Testimony In Juvenile Life Without Parole Sentencing, Allison M. Scoggin

Washington University Journal of Law & Policy

In Miller v. Alabama and Montgomery v. Louisiana, the Supreme Court held mandatory juvenile life without parole sentences unconstitutional and applied this retroactively. Many state juvenile life without parole statutes list factors for a court to consider in deciding whether to sentence to life without parole. Frequently, victim or community impact testimony (or both) are included. This Note argues that the inclusion of such should not be permitted during the consideration of a juvenile life without parole sentence, as it does not contribute to individualized sentencing or rehabilitative potential of an offender.


Introduction: New Directions In Domestic And International Dispute Resolution, Karen Tokarz Jan 2020

Introduction: New Directions In Domestic And International Dispute Resolution, Karen Tokarz

Washington University Journal of Law & Policy

No abstract provided.


A Tough Bitch In Federal Court: An Argument For Gaia Standing, Tessa Adkins Jan 2020

A Tough Bitch In Federal Court: An Argument For Gaia Standing, Tessa Adkins

Washington University Journal of Law & Policy

A plaintiff must show a personal injury to have standing to bring a claim in a court. Having this standing to sue proves unusually difficult in environmental suits. This Note argues that this myopic approach is flawed, and instead, courts should use Gaia standing. Under this approach, environmental plaintiffs’ standing is based on their relationship to the nonhuman entity Gaia, or the Earth as a unified organism. This would honor both the Constitution and the reality of environmental injury.


That's The One!: An Analysis Of Eyewitness Identifications In Missouri And Their Impact On Cross-Racial Identification, Deionna Ferguson Jan 2020

That's The One!: An Analysis Of Eyewitness Identifications In Missouri And Their Impact On Cross-Racial Identification, Deionna Ferguson

Washington University Journal of Law & Policy

As evidenced by the inconsistent eyewitness accounts of the shooting of Michael Brown, Jr., eyewitness identifications are generally unreliable. In addition, cross-racial misidentification, when the eyewitness is of a different race than the suspect, highlights the need to ensure the reliability of eyewitness identifications. This Note argues that Missouri should follow other Midwestern states in the adoption of procedures involving eyewitnesses. At a minimum, such procedures should include: double-blind procedures, instructions that the suspect may not be present in a lineup, ensuring that all non-suspect fillers are similar in appearance to the suspect, procedures for retrieving confidence statements, and procedures ...


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 ...


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 ...


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 ...


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.


Telling The Story Of Justice Sandra Day O'Connor, Susan Frelich Appleton Jan 2020

Telling The Story Of Justice Sandra Day O'Connor, Susan Frelich Appleton

Washington University Journal of Law & Policy

This Article critiques Evan Thomas’s biography First: Sandra Day O’Connor by examining both intimacy and gender. Focusing on the role of gender, which this piece opines to be thin and unsatisfying. By rejecting the label “feminist,” Thomas ignores “feminist practical reasoning” as an explanation of Justice O’Connor’s approach to deciding cases. In addition, Thomas’s lack of focus on Justice O’Connor’s concurring opinion in J.E.B. v. Alabama, and specifically her ideas as they relate to cultural feminism. In conclusion, one must consider stories, including Thomas’s work, in the whole context, including ...


Pioneering Women Lawyers Who Changed The Legal Profession And Influenced The Practice Of Law, Including Mediation Practice: From Barkeloo And Couzins To The Present, Karen Tokarz Jan 2020

Pioneering Women Lawyers Who Changed The Legal Profession And Influenced The Practice Of Law, Including Mediation Practice: From Barkeloo And Couzins To The Present, Karen Tokarz

Washington University Journal of Law & Policy

This Article considers the importance of the growth of women in the legal profession, specifically mediation as a form of legal dispute resolution. Using Professor Trina Grillo’s article, The Mediation Alternative: Process Dangers for Women, this Article focuses on the need for mindful mediation and reflective practice. Through a focus on voluntariness, self-determination, attention to bias, and attention to the process, a mediator may achieve a mindful and reflective practice.


Gender Bias As The Norm In The Legal Profession: It's Still A [White] Man's Game, Kimberly Jade Norwood Jan 2020

Gender Bias As The Norm In The Legal Profession: It's Still A [White] Man's Game, Kimberly Jade Norwood

Washington University Journal of Law & Policy

Women consistently represent over fifty percent of entering law school classes, and one-third of all lawyers in the United States. As more women go to law school and practice as attorneys, two major impediments prevent women from climbing hierarchical ladders in the legal profession. This article examines gender and racially gendered bias in the legal profession, including law schools. It argues that until the existing structure is dismantled, women will continue to face gender and racially gendered bias in the legal profession.


Estate Planning With Shaq And Strom: Teaching Post-Mortem Intimacy Audits, Adrienne D. Davis Jan 2020

Estate Planning With Shaq And Strom: Teaching Post-Mortem Intimacy Audits, Adrienne D. Davis

Washington University Journal of Law & Policy

This Article highlights the importance of using both popular culture references and fictional show characters as mediums for teaching courses on Trusts and Estates. Utilizing post-mortem intimacy audits, specifically through pop culture pedagogical hypotheticals and case studies, Professor Davis highlights the importance of understanding doctrines within Trusts and Estates Law. Focusing on the examples of Shaquille O’Neal and Strom Thurmond, this Article highlights three important lessons for students: the fragility of estate planning, the effects of individual estate planning on groups’ broader wealth and political equality, and the role of private law in distributing legal rights and political equality.


Earth Mothers, Soy Boys, And Cool Dudes: Practicing Law While Protecting The Environment, Elizabeth J. Hubertz Jan 2020

Earth Mothers, Soy Boys, And Cool Dudes: Practicing Law While Protecting The Environment, Elizabeth J. Hubertz

Washington University Journal of Law & Policy

As a public-interest environmental lawyer, this author explores gender in the legal profession. Specifically, gender in environmental law. Through a recognition of the gendered dimensions of environmental law, this Article explores the nature-culture binary, the relationship of meat to masculinity, and perceptions of the risks and threats of climate change.


It's Complicated: Reflections On Teaching Negotiation For Women, Rebecca Hollander-Blumoff Jan 2020

It's Complicated: Reflections On Teaching Negotiation For Women, Rebecca Hollander-Blumoff

Washington University Journal of Law & Policy

The role of gender in a negotiation – it’s complicated. This Article highlights the author’s approach to teaching courses focused on gender and negotiation. This approach begins by explaining the structure of negotiation along with basic theories and tactics. After this, the course focuses on the role of gender in negotiation, including gender pay disparities and the efforts to empower women to negotiate. Then, the course moves to data about how well women perform in negotiation and stereotypes of women in negotiations. Ultimately, the class ends with a reminder that those in positions of power must keep an eye ...


The Conservative Challenge To Caring For Compensated Caregivers, Peggie R. Smith Jan 2020

The Conservative Challenge To Caring For Compensated Caregivers, Peggie R. Smith

Washington University Journal of Law & Policy

As more households seek home care workers to provide care for elderly and disabled family members, conservative attacks on workers’ unionization efforts threaten to destabilize the industry. This article discusses the supply and demand concerns within the industry, and considers the conservative attack on home care workers. It concludes by exploring the proposed federal domestic workers bill of rights and recommends proactive measures for states to help fortify the industry.


Leveling The Playing Field: Disability, Title Ix, And High School Sports, Johanna E. Christophel Jan 2020

Leveling The Playing Field: Disability, Title Ix, And High School Sports, Johanna E. Christophel

Washington University Journal of Law & Policy

The Americans with Disabilities Act requires that covered entities provide a substantially equivalent experience to that of able-bodied persons. However, the Seventh Circuit, recently applied a but for test for a para-ambulatory high school athlete’s reasonable accommodation request, and denied this request. This Note argues that the Seventh Circuit should have used a two-part meaningful access test, which should be informed by past legislation based on discrimination as a result of physiological differences. To ensure that para-ambulatory student athletes have the opportunity to participate in high school sports, a separate division or qualifying times must be created.


Sense And Census Building: Capturing Tribal Realities In The U.S. Census, Elizabeth Hope Fink Jan 2020

Sense And Census Building: Capturing Tribal Realities In The U.S. Census, Elizabeth Hope Fink

Washington University Journal of Law & Policy

As the 2020 Census approaches, citizens of American Indian and Alaska Native tribes face the failure of the census to adequately capture the realities of Indian Country. Historically, one of the most undercounted groups, American Indian and Alaska Native tribes, face larger problems than just the methodologies. Geographic entities used by the U.S. Census Bureau are not only at odds with traditional cultural understandings, but in some areas with realities of migration, services, and community affiliation. This Note argues that to better represent Indian Country, the U.S. Census Bureau must work with tribal communities to redefine all as ...


Economic Partiality And Horizontal Inequity: The New Tcja Interest Expense Deduction Limit, Kuai Yu Jan 2020

Economic Partiality And Horizontal Inequity: The New Tcja Interest Expense Deduction Limit, Kuai Yu

Washington University Journal of Law & Policy

The Tax Cuts and Jobs Act significantly overhauled the federal tax code. This included a limit on the amount of interest that a business can deduct, which ended the prior policy of full deductibility. This implicates policy questions regarding a corporation’s decision of how to structure how much debt and equity it holds. Viewing this through the considerations of horizontal equity and economic neutrality, this Note proposes to reverse this limitation or to permit full deductibility of disallowed deductions upon maturity of the debt.