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Washington and Lee University School of Law

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Articles 1 - 30 of 5322

Full-Text Articles in Law

Trial By Formula: The Use Of Statistical Sampling And Extrapolation In Establishing Liability Under The False Claims Act, Peter T. Thomas Nov 2017

Trial By Formula: The Use Of Statistical Sampling And Extrapolation In Establishing Liability Under The False Claims Act, Peter T. Thomas

Washington and Lee Law Review Online

No abstract provided.


Rationality Revisited: A Response To Professor Greenberg, S.I. Strong Sep 2017

Rationality Revisited: A Response To Professor Greenberg, S.I. Strong

Washington and Lee Law Review Online

Scholarly debate is meant to improve the legal community’s understanding of both the value and the limitations of a particular strand of research. While it is useful to identify areas of principled disagreement, there are times when criticism is not based on different interpretations of law or theory but instead on a misapprehension of the underlying facts or the context in which the initial analysis is placed. In those types of situations, it is necessary for the original author to provide a formal response to keep errors from entering into the legal literature.

This Article provides just such a ...


The Death Penalty's Darkside: A Response To Phyllis Goldfarb's Matters Of Strata: Race, Gender, And Class Structures In Capital Cases, Kevin Barry, Bharat Malkani Sep 2017

The Death Penalty's Darkside: A Response To Phyllis Goldfarb's Matters Of Strata: Race, Gender, And Class Structures In Capital Cases, Kevin Barry, Bharat Malkani

Washington and Lee Law Review Online

In Matters of Strata: Race, Gender, and Class Structures in Capital Cases, Professor Phyllis Goldfarb examines the ways in which race, class, and gender affect the American criminal justice system generally, and its death penalty system in particular. This Response focuses on one of Goldfarb’s observations: The relationship between slavery and the death penalty. This relationship helps to explain why, over the past four decades, the thirteen states that comprised the former Confederacy have been responsible for nearly all of this nation’s executions. Although the U.S. Supreme Court has repeatedly failed to address the death penalty’s ...


Brief Of Professors At Law And Business Schools As Amicus Curiae In Support Of Respondents, James D. Cox, Lyman P. Q. Johnson, J. Robert Brown, Joan Macleod Heminway Sep 2017

Brief Of Professors At Law And Business Schools As Amicus Curiae In Support Of Respondents, James D. Cox, Lyman P. Q. Johnson, J. Robert Brown, Joan Macleod Heminway

Faculty Scholarship

None available.


Cannabis Trademarks: A State Registration Consortium Solution, Russell W. Jacobs Sep 2017

Cannabis Trademarks: A State Registration Consortium Solution, Russell W. Jacobs

Washington and Lee Law Review Online

This article proposes a solution to a problem in the cannabis industry resulting from the unavailability of federal trademark registration for that sector. The author offers modest changes to the existing state trademark registration systems to make up for the gaps at the federal level. The proposed reforms would strengthen the trademark framework by conferring on cannabis trademark registrations presumptions of ownership, exclusive rights, and validity beyond the presumption of registration currently afforded under state laws. To extend protection throughout the geographic breadth of the cannabis marketplace, the states with legalized recreational cannabis would offer reciprocal recognition of state cannabis ...


The Ttab Should Drink A Beer And Relax: Implications For Trademark Consent Agreements In The Craft Brewing Industry After In Re Bay State Brewing Company, Inc., Spencer T. Wiles Aug 2017

The Ttab Should Drink A Beer And Relax: Implications For Trademark Consent Agreements In The Craft Brewing Industry After In Re Bay State Brewing Company, Inc., Spencer T. Wiles

Washington and Lee Law Review Online

No abstract provided.


Contemplating Masterpiece Cakeshop, Terri R. Day, Danielle Weatherby Aug 2017

Contemplating Masterpiece Cakeshop, Terri R. Day, Danielle Weatherby

Washington and Lee Law Review Online

Next term, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court will consider whether a baker’s religious objection to same-sex marriage justifies his violation of Colorado’s public accommodation law in refusing to bake a cake for a same-sex wedding. At the centerpiece of Masterpiece Cakeshop is a clash between the First Amendment’s Free Exercise Clause and the Fourteenth Amendment’s Equal Protection Clause or, more precisely, the principles of equality in commercial life as grounded in Colorado’s public accommodation law. In exploring the purpose inherent in regulating private conduct through public accommodation laws ...


Realizing The Gap Between Rationality And Information, Elayne E. Greenberg Jul 2017

Realizing The Gap Between Rationality And Information, Elayne E. Greenberg

Washington and Lee Law Review Online

The Online Journal requested that I evaluate Professor Strong’s empirical research, “Realizing Rationality: An Empirical Assessment of International Commercial Mediation,” reported in 23 Wash. & Lee. L. Rev. 1973 (2016). The purpose of Professor Strong’s research is to help “fill the informational gap” about international commercial mediation for the United Nations Commission on International Trade (hereinafter UNICITRAL) Working Group II (Arbitration and Conciliation) so that the Working Group could better assess whether, in fact, there is a need for a new UNCITRAL instrument to enforce global commercial mediation agreements. Professor Strong’s research offers insightful nuggets about international commercial ...


Nominate Judge Koh To The Ninth Circuit Again, Carl Tobias Jul 2017

Nominate Judge Koh To The Ninth Circuit Again, Carl Tobias

Washington and Lee Law Review Online

During February 2016, President Barack Obama nominated United States District Judge Lucy Haeran Koh to a “judicial emergency” vacancy on the United States Court of Appeals for the Ninth Circuit. She has capably served over multiple years in the Northern District of California competently deciding numerous high-profile lawsuits, specifically regarding intellectual property. Accordingly, the President’s efforts to confirm her were unsurprising. However, 2016 was a presidential election year when judicial nominations traditionally slow and ultimately halt. This difficulty was exacerbated when Republicans consistently refused to implement any confirmation process for United States Court of Appeals for the District of ...


Mandating Rule 11 Sanctions? Here We Go Again!, Edward D. Cavanagh Jun 2017

Mandating Rule 11 Sanctions? Here We Go Again!, Edward D. Cavanagh

Washington and Lee Law Review Online

The House of Representatives has passed H.R. 720, a bill that would amend Rule 11 of the Federal Rules of Civil Procedure by re‑instituting mandatory sanctions for Rule 11 violations and essentially restoring Rule 11 to its contents under the 1983 amendments to the Federal Rules of Civil Procedure. The legislation would mandate imposition of monetary sanctions and eliminate any restrictions on when a Rule 11 motion could be filed. The bill would thus scuttle the 1993 Amendments, which (1) entrusted the sanctions decision to the sound discretion of the trial court; (2) provided a 21‑day safe ...


Zika, Feminism, And The Failures Of Health Policy, Johanna Bond Jun 2017

Zika, Feminism, And The Failures Of Health Policy, Johanna Bond

Washington and Lee Law Review Online

The Zika epidemic caused serious concerns about fetal health throughout Latin America and some southern states in the United States. The prevailing governmental response throughout the region continues to emphasize two disease control factors: pregnancy delay and mosquito abatement. This essay argues that the current health policy approach of the World Health Organization, the Centers for Disease Control, and various national governments fails in three primary ways. First, the approach does not adequately consider the intersection of gender and poverty; thus, the current policy fails to respond to the needs of women living in poverty. Second, the health policy response ...


The Information Regulation Of Business Actors, Kishanthi Parella Jun 2017

The Information Regulation Of Business Actors, Kishanthi Parella

Faculty Scholarship

A transnational legal order (TLO) is emerging regarding the role of businesses in respecting human rights. This legal order includes multistakeholder initiatives, international organization recommendations and guidelines, NGO certifications, and other voluntary instruments. Many of the norms within this TLO are nonbinding and therefore lack mandatory compliance; what they may possess is persuasive power, particularly when the norms are developed, endorsed, and managed by reputable organizations. It is that reputational, or legitimacy, advantage that matters for encouraging industry associations to comply with the nonbinding norms associated with these organizations. Industry associations and other business actors will gravitate more towards legitimacy ...


Getting Specific About The Policy And Tools Of Securities Regulation: A Limited Response To Diversifying To Mitigate Risk: Can Dodd–Frank Section 342 Help Stabilize The Financial Sector?, Joan Macleod Heminway May 2017

Getting Specific About The Policy And Tools Of Securities Regulation: A Limited Response To Diversifying To Mitigate Risk: Can Dodd–Frank Section 342 Help Stabilize The Financial Sector?, Joan Macleod Heminway

Washington and Lee Law Review Online

No abstract provided.


Recalibrating Judicial Renominations In The Trump Administration, Carl Tobias May 2017

Recalibrating Judicial Renominations In The Trump Administration, Carl Tobias

Washington and Lee Law Review Online

Now that President Donald Trump has commenced the fifth month of his administration, federal courts experience 121 circuit and district court vacancies. These statistics indicate that Mr. Trump has a valuable opportunity to approve more judges than any new President. The protracted open judgeships detrimentally affect people and businesses engaged in federal court litigation, because they restrict the expeditious, inexpensive and equitable disposition of cases. Nevertheless, the White House has been treating crucial issues that mandate careful attention—specifically establishing a government, confirming a Supreme Court Justice, and keeping numerous campaign promises. How, accordingly, can President Trump fulfill these critical ...


An Indigent Criminal Defendant Is Entitled To “An Expert Of His Own”, Fredrick E. Vars May 2017

An Indigent Criminal Defendant Is Entitled To “An Expert Of His Own”, Fredrick E. Vars

Washington and Lee Law Review Online

The Supreme Court recently heard the case of an Alabama death row inmate, James McWilliams. A thus far overlooked argument could save his life and help level the playing field in other capital cases. The Court in 1985 promised independent expertise. Now is its chance to make good on that promise.


Data Flow Maps—Increasing Data Processing Transparency And Privacy Compliance In The Enterprise, Jeremy Berkowitz, Michael Mangold, Stephen Sharon May 2017

Data Flow Maps—Increasing Data Processing Transparency And Privacy Compliance In The Enterprise, Jeremy Berkowitz, Michael Mangold, Stephen Sharon

Washington and Lee Law Review Online

In recent years, well-known cyber breaches have placed growing pressure on organizations to implement proper privacy and data protection standards. Attacks involving the theft of employee and customer personal information have damaged the reputations of well-known brands, resulting in significant financial costs. As a result, governments across the globe are actively examining and strengthening laws to better protect the personal data of its citizens. The General Data Protection Regulation (GDPR) updates European privacy law with an array of provisions that better protect consumers and require organizations to focus on accounting for privacy in their business processes through “privacy-by-design” and “privacy ...


The Market’S Law Of Privacy: Case Studies In Privacy/Security Adoption, Chetan Gupta May 2017

The Market’S Law Of Privacy: Case Studies In Privacy/Security Adoption, Chetan Gupta

Washington and Lee Law Review Online

This paper examines the hypothesis that it may be possible for individual actors in a marketplace to drive the adoption of particular privacy and security standards. It aims to explore the diffusion of privacy and security technologies in the marketplace. Using HTTPS, Two-Factor Authentication, and End-to-End Encryption as case studies, it tries to ascertain which factors are responsible for successful diffusion which improves the privacy of a large number of users. Lastly, it explores whether the FTC may view a widely diffused standard as a necessary security feature for all actors in a particular industry.

Based on the case studies ...


Explaining The Persistence Of The “Ample Alternative Channels” Test, Thomas Berry May 2017

Explaining The Persistence Of The “Ample Alternative Channels” Test, Thomas Berry

Washington and Lee Law Review Online

No abstract provided.


Combating The Ninth Circuit Judicial Vacancy Crisis, Carl Tobias May 2017

Combating The Ninth Circuit Judicial Vacancy Crisis, Carl Tobias

Washington and Lee Law Review Online

No abstract provided.


Privacy In The Age Of Autonomous Vehicles, Ivan L. Sucharski, Philip Fabinger Apr 2017

Privacy In The Age Of Autonomous Vehicles, Ivan L. Sucharski, Philip Fabinger

Washington and Lee Law Review Online

To prepare for the age of the intelligent, highly connected, and autonomous vehicle, a new approach to concepts of granting consent, managing privacy, and dealing with the need to interact quickly and meaningfully is needed. Additionally, in an environment where personal data is rapidly shared with a multitude of independent parties, there exists a need to reduce the information asymmetry that currently exists between the user and data collecting entities. This Article rethinks the traditional notice and consent model in the context of real-time communication between vehicles or vehicles and infrastructure or vehicles and other surroundings and proposes a re-engineering ...


Washington And Lee Legal Scholarship, 3rd Edition, The Law Library At Washington And Lee University School Of Law Apr 2017

Washington And Lee Legal Scholarship, 3rd Edition, The Law Library At Washington And Lee University School Of Law

Washington and Lee Legal Scholarship

No abstract provided.


Overtime: Are Public Employees Compensated For Working Extra Hours?, Thomas P. Dematteo Apr 2017

Overtime: Are Public Employees Compensated For Working Extra Hours?, Thomas P. Dematteo

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.


Table Of Contents Apr 2017

Table Of Contents

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.


The Current State Of Election Law In The United States, Mark Rush Apr 2017

The Current State Of Election Law In The United States, Mark Rush

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.


Masthead And Front Matter Apr 2017

Masthead And Front Matter

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.


Property Rights And Freedom: The Keys To Improving Life In Indian Country, Adam Crepelle, Walter E. Block Apr 2017

Property Rights And Freedom: The Keys To Improving Life In Indian Country, Adam Crepelle, Walter E. Block

Washington and Lee Journal of Civil Rights and Social Justice

American Indians are at the bottom of nearly every indicator of welfare and have been since the founding of the United States. The present paper focuses on but two of the causal agents: lack of private property rights and a dearth of economic freedom. Although addressing these issues will not solve all of Indian country’s problems, strengthening property rights and improving economic freedom will generate opportunities for American Indians to improve their economic and social well-being. This recommendation is easy to implement and aligns well with tribal culture pre-contact.


Civil Rights Remedies In Higher Education: Jurisprudential Limitations And Lost Moments In Time, Lia Epperson Apr 2017

Civil Rights Remedies In Higher Education: Jurisprudential Limitations And Lost Moments In Time, Lia Epperson

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.


An Examination Of Trans Fat Labeling: Splitting The Third & Ninth Circuit, Jack Gainey Apr 2017

An Examination Of Trans Fat Labeling: Splitting The Third & Ninth Circuit, Jack Gainey

Washington and Lee Journal of Civil Rights and Social Justice

At first glance, consumer claims alleging misleading labeling would seem to find a simple resolution. Under 21 U.S.C. § 343, which governs misbranded food, a food product is misbranded if “its labeling is false or misleading.” However, controversial interpretation of seemingly straightforward statutory language, together with evolving case law, have blurred a once clear picture. Disagreement over the federal preemption of consumer claims regarding trans fat, underscored by a dispute regarding standing, have combined to create a divergence of opinions between courts across the country.

In 2011, the United States District Court for the Northern District of California considered ...


Virginia’S Interpretation Of Ake V. Oklahoma: A Hollow Right, Andrew Monaghan Higgins Apr 2017

Virginia’S Interpretation Of Ake V. Oklahoma: A Hollow Right, Andrew Monaghan Higgins

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.


Table Of Contents Apr 2017

Table Of Contents

Washington and Lee Law Review

No abstract provided.