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Washington and Lee University School of Law

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Articles 1 - 30 of 5395

Full-Text Articles in Law

Smoke ‘Em If You Got ‘Em?— Reconsidering The Activist State Attorney General In Light Of Climate Change, Tobacco Tactics, & Exxonmobil, Christopher C. Brewer Apr 2018

Smoke ‘Em If You Got ‘Em?— Reconsidering The Activist State Attorney General In Light Of Climate Change, Tobacco Tactics, & Exxonmobil, Christopher C. Brewer

Washington and Lee Law Review Online

No abstract provided.


Clipping The Wings Of Industry: Uncertainty In Interpretation And Enforcement Of The Migratory Bird Treaty Act, Martha G. VáZquez Apr 2018

Clipping The Wings Of Industry: Uncertainty In Interpretation And Enforcement Of The Migratory Bird Treaty Act, Martha G. VáZquez

Washington and Lee Law Review Online

No abstract provided.


Reaching A Sense Of Justice: Understanding How The Facilitation Theory Of Prosecution Under Federal Criminal Law Can Be Used To Hold Hard Targets Accountable For Financial Crimes And Corporate Corruption, Thomas M. Dibiagio Mar 2018

Reaching A Sense Of Justice: Understanding How The Facilitation Theory Of Prosecution Under Federal Criminal Law Can Be Used To Hold Hard Targets Accountable For Financial Crimes And Corporate Corruption, Thomas M. Dibiagio

Washington and Lee Law Review Online

A fundamental principle of criminal law is that to hold a defendant accountable, the prosecution must prove that he culpably participated in the criminal activity. To prove culpable participation, the government can prove a defendant’s direct knowledge of and active participation in the criminal conduct. However, because of the nature of financial crimes and corporate misconduct, culpable targets often are able to insulate themselves from the underlying criminal conduct and thereby, frustrate the prosecution’s ability to meet this evidentiary standard. The resulting impunity undermines the public’s trust and confidence in the fundamental fairness of the enforcement of ...


An Essay Concerning Some Problems With The Constitutional-Doubt Canon, Benjamin M. Flowers Feb 2018

An Essay Concerning Some Problems With The Constitutional-Doubt Canon, Benjamin M. Flowers

Washington and Lee Law Review Online

The constitutional-doubt canon instructs that statutes should be interpreted in a way that avoids placing their constitutionality in doubt. This canon is often said to rest on the presumption that Congress does not intend to exceed its constitutional authority. That presumption, however, is inconsistent with the notion that government actors tend to exceed their lawful authority—a notion that motivates our constitutional structure, and in particular the series of checks and balances that the Constitution creates. This tension between the constitutional- doubt canon and the Constitution’s structure would be acceptable if the canon accurately reflected the manner in which ...


Revisiting The Role Of Federal Prosecutors In Times Of Mass Imprisonment, Nora V. Demleitner Feb 2018

Revisiting The Role Of Federal Prosecutors In Times Of Mass Imprisonment, Nora V. Demleitner

Faculty Scholarship

None available.


The Risk Of Regulatory Arbitrage: A Response To Securities Regulation In Virtual Space, Wendy Gerwick Couture Jan 2018

The Risk Of Regulatory Arbitrage: A Response To Securities Regulation In Virtual Space, Wendy Gerwick Couture

Washington and Lee Law Review Online

In Securities Regulation in Virtual Space, Eric. C. Chaffee explores the potential applicability of the securities laws to virtual transactions based on virtual activity and argues that, although many of these transactions likely qualify as “investment contracts” under S.E.C. v. W.J. Howey Co., they should be excluded under the context clause because, among other reasons, application of the securities laws would stifle creativity within this innovative space. This Response proposes a reframing of the Howey test as a response to the risk of regulatory arbitrage, argues that the context clause should only exclude transactions that do not ...


Ask A Director: Reporting Accomplishments, Caroline L. Osborne Jan 2018

Ask A Director: Reporting Accomplishments, Caroline L. Osborne

Faculty Scholarship

None available.


Securing Professional Development: Getting To Yes, Caroline L. Osborne, Carol A. Watson, Amy J. Eaton Jan 2018

Securing Professional Development: Getting To Yes, Caroline L. Osborne, Carol A. Watson, Amy J. Eaton

Faculty Scholarship

None available.


Comment On Whistling Loud And Clear: Applying Chevron To Subsection 21f Of Dodd–Frank, Sarah C. Haan Jan 2018

Comment On Whistling Loud And Clear: Applying Chevron To Subsection 21f Of Dodd–Frank, Sarah C. Haan

Washington and Lee Law Review

No abstract provided.


Reconciling The Lanham Act And The Fdca: A Comment On Chris Hurley’S Note, Christopher B. Seaman Jan 2018

Reconciling The Lanham Act And The Fdca: A Comment On Chris Hurley’S Note, Christopher B. Seaman

Washington and Lee Law Review

No abstract provided.


Table Of Contents Jan 2018

Table Of Contents

Washington and Lee Law Review

No abstract provided.


The Federal Law Of Property: The Case Of Inheritance Disclaimers And Tenancy By The Entireties, David Gray Carlson Jan 2018

The Federal Law Of Property: The Case Of Inheritance Disclaimers And Tenancy By The Entireties, David Gray Carlson

Washington and Lee Law Review

No abstract provided.


Deconstructing The Epistemic Challenges To Mass Atrocity Prosecutions, Nancy Amoury Combs Jan 2018

Deconstructing The Epistemic Challenges To Mass Atrocity Prosecutions, Nancy Amoury Combs

Washington and Lee Law Review

Mass atrocity prosecutions are credited with advancing a host of praiseworthy objectives. They are believed to impose much-needed retribution, deter future atrocities, and affirm the rule of law in previously lawless societies. However, mass atrocity prosecutions will accomplish none of these laudable ends unless they are able to find accurate facts. Convicting the appropriate individuals of the appropriate crimes is a necessary and foundational condition for the success of mass atrocity prosecutions. But it is a condition that is frequently difficult to meet, as mass atrocity prosecutions are often bedeviled by pervasive and invidious obstacles to accurate fact-finding. This Article ...


Reckoning Contract Damages: Valuation Of The Contract As An Asset, Victor P. Goldberg Jan 2018

Reckoning Contract Damages: Valuation Of The Contract As An Asset, Victor P. Goldberg

Washington and Lee Law Review

No abstract provided.


Quacks Or Bootleggers: Who’S Really Regulating Hedge Funds?, Jeremy Kidd Jan 2018

Quacks Or Bootleggers: Who’S Really Regulating Hedge Funds?, Jeremy Kidd

Washington and Lee Law Review

Influential scholars of corporate law have questioned previous federal interventions into corporate governance, calling it quackery. Invoking images of medical malpractice, these critiques have argued persuasively that Congress, in responding to crises, makes policy that disrupts efficient private rules and established state laws. This Article applies the Bootleggers and Baptists theory to show that Dodd–Frank’s hedge fund rules are more than just negligent or reckless, but designed to benefit special interests that compete with the hedge fund model. Those rules offer no solutions to any real or perceived risks arising from hedge fund investing, but might offer an ...


Ending Litigation And Financial Windfalls On Time-Barred Debts, Marc C. Mcallister Jan 2018

Ending Litigation And Financial Windfalls On Time-Barred Debts, Marc C. Mcallister

Washington and Lee Law Review

A trap for unsophisticated debtors, debt collectors often attempt to collect time-barred debts through written offers to settle those debts for a fraction of what is owed. Debtors typically respond to such offers in one of four ways. First, some debtors simply pay the offered settlement amount, usually 10%–40% of the total outstanding debt, thereby satisfying the debt in full. Second, those who wish to eliminate the debt but cannot pay the entire offered settlement amount will instead make a small payment, unwittingly reviving the statute of limitations on collections and making the entire debt judicially enforceable for several ...


Whistling Loud And Clear: Applying Chevron To Subsection 21f Of Dodd–Frank, Shaun M. Bennett Jan 2018

Whistling Loud And Clear: Applying Chevron To Subsection 21f Of Dodd–Frank, Shaun M. Bennett

Washington and Lee Law Review

No abstract provided.


Canons Of Construction For Dysfunctional Statutes: A Comment On Bennett, Paul G. Mahoney Jan 2018

Canons Of Construction For Dysfunctional Statutes: A Comment On Bennett, Paul G. Mahoney

Washington and Lee Law Review

No abstract provided.


The Off-Label Use Of Pom Wonderful: Using Section 43(A) To Eliminate Misleading Off-Label Drug Promotion, Christopher A. Hurley Jan 2018

The Off-Label Use Of Pom Wonderful: Using Section 43(A) To Eliminate Misleading Off-Label Drug Promotion, Christopher A. Hurley

Washington and Lee Law Review

No abstract provided.


The Formulary Fix Buries Fritz & Harvey: Drug Promotion Escapes Its Past Constraints, James T. O'Reilly Jan 2018

The Formulary Fix Buries Fritz & Harvey: Drug Promotion Escapes Its Past Constraints, James T. O'Reilly

Washington and Lee Law Review

No abstract provided.


Orwell's 1984 And A Fourth Amendment Cybersurveillance Nonintrusion Test, Margaret Hu Dec 2017

Orwell's 1984 And A Fourth Amendment Cybersurveillance Nonintrusion Test, Margaret Hu

Faculty Scholarship

This Article describes a cybersurveillance nonintrusion test under the Fourth Amendment that is grounded in evolving customary law to replace the reasonable expectation of privacy test formulated in Katz v. United States. To illustrate how customary law norms are shaping modern Fourth Amendment jurisprudence, this Article examines the recurrence of judicial references to George Orwell’s novel, 1984, within the Fourth Amendment context when federal courts have assessed the constitutionality of modern surveillance methods. The Supreme Court has indicated that the Fourth Amendment privacy doctrine must now evolve to impose meaningful limitations on the intrusiveness of new surveillance technologies.

A ...


Ocasio V. United States: The Supreme Court’S Sudden Expansion Of Conspiracy Liability (And Why Bribe-Taking Foreign Officials Should Take Note), Michael F. Dearington Nov 2017

Ocasio V. United States: The Supreme Court’S Sudden Expansion Of Conspiracy Liability (And Why Bribe-Taking Foreign Officials Should Take Note), Michael F. Dearington

Washington and Lee Law Review Online

Last year, the United States Supreme Court decided a Hobbs Act conspiracy case that could significantly expand the bounds of the general federal conspiracy statute. In Ocasio v. United States, 136 S. Ct. 1423 (2016), the Court held that, under “age-old principles of conspiracy law,” a police officer could conspire with shop owners to extort those very same shop owners in violation of the Hobbs Act. The corollary is that a shop owner can, in theory, conspire to extort himself. If a shop owner can conspire to extort himself as a matter of law, why can’t a bribe-taking foreign ...


Federal Railroad Power Versus Local Land-Use Regulation: Can Localities Stop Crude-By-Rail In Its Tracks?, Matthew C. Donahue Nov 2017

Federal Railroad Power Versus Local Land-Use Regulation: Can Localities Stop Crude-By-Rail In Its Tracks?, Matthew C. Donahue

Washington and Lee Law Review Online

No abstract provided.


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 Klein Rule Of Decision Puzzle And The Self-Dealing Solution, Evan C. Zoldan Sep 2017

The Klein Rule Of Decision Puzzle And The Self-Dealing Solution, Evan C. Zoldan

Washington and Lee Law Review

Scholars and courts have struggled to make sense of the Supreme Court’s decision in United States v. Klein, an intriguing but enigmatic opinion concerning the limits of Congress’s ability to interfere with cases pending before the federal courts. Klein is intriguing because its broad and emphatic language suggests significant limits on the power of Congress. Klein is enigmatic because the Court has never again struck down a statute because of Klein or even made clear what principle animates its result. In fact, despite reaffirming the existence of a principle based on Klein, the Court has repeatedly read it ...


The Debt-Equity Labyrinth: A Case For The New Section 385 Regulations, Alexander Lewitt Sep 2017

The Debt-Equity Labyrinth: A Case For The New Section 385 Regulations, Alexander Lewitt

Washington and Lee Law Review

No abstract provided.