Law Commons^™

Citizen Lewis Powell, David Westin

Washington and Lee Law Review Online

No abstract provided.

A Return To Reasonability: Modifying The Collateral Source Rule In Light Of Artificially Inflated Damage Awards, J. Zachary Balasko

Washington and Lee Law Review Online

No abstract provided.

O’Bannon V. National Collegiate Athletic Association: Why The Ninth Circuit Should Not Block The Floodgates Of Change In College Athletics, Michael A. Carrier, Christopher L. Sagers

Washington and Lee Law Review Online

In O’Bannon v. National Collegiate Athletic Ass’n, then-Chief Judge Claudia Wilken of the U.S. District Court for the Northern District of California issued a groundbreaking decision, potentially opening the floodgates for challenges to National Collegiate Athletic Association (NCAA) amateurism rules. The NCAA was finally put to a full evidentiary demonstration of its amateurism defense, and its proof was found emphatically wanting. We agree with Professor Edelman that O’Bannon could bring about significant changes, but only if the Ninth Circuit affirms. We write mainly to address the NCAA’s vigorous pending appeal and the views of certain amici, and to explain …

From Mayberry To Ferguson: The Militarization Of American Policing Equipment, Culture, And Mission, Cadman R. Kiker Iii

Washington and Lee Law Review Online

We are at the dawn of a new era of policing in the United States. In recent months, images of armed police officers patrolling the streets of Ferguson, Missouri, and of a toddler burned by a Georgia SWAT team’s grenade have been indelibly branded into America’s social consciousness. There is a unique bipartisan outcry from Washington in a time otherwise marked by bitter political divides. Politicians and journalists alike are questioning the efficacy of a militaristic police force and the path that led to this shift in the paradigm of policing.

This Essay examines the how and why of police …

Same-Sex Marriage And Loving V. Virginia: Analogy Or Disanalogy?, Ronald Turner

Washington and Lee Law Review Online

In its 1967 decision in Loving v. Virginia, the United States Supreme Court struck down Virginia antimiscegenation laws prohibiting and criminalizing interracial marriages, holding that the challenged laws violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. In recent federal appeals court decisions, Loving has been invoked as an authoritative analogy supporting plaintiffs’ claims that same-sex marriage bans violate the Constitution. This Essay considers the posited Loving analogy and the contentions (1) that different-race marriage and same-sex marriage prohibitions present similar, albeit not identical, instances of unconstitutional state limitations on an …

Here Come The Trade Secret Trolls, David S. Levine, Sharon K. Sandeen

Washington and Lee Law Review Online

Within the past few years, the U.S. federal government has been forced to confront the massive but hard-to-quantify problem of foreign and state-sponsored cyberespionage against U.S. corporations, from Boeing to small technology start-ups, and (as of this writing) perhaps Sony Pictures Entertainment. As part of that effort, Congress has taken up the Defend Trade Secrets Act and the Trade Secret Protection Act, which would create a private cause of action under the federal Economic Espionage Act. This Article addresses the possibility of introducing trolling behavior—using litigation as a means to extract settlement payments from unsuspecting defendants—to trade secret law through …

College Sports And The Antitrust Analysis Of Mystique, Sherman Clark

Washington and Lee Law Review Online

In this response to Marc Edelman’s Article, The District Court Decision in O’Bannon v. National Collegiate Athletic Association: A Small Step Forward for College-Athlete Rights, and a Gateway for Far Grander Change, 71 WASH. & LEE L. REV. 2319 (2014), I highlight a set of conceptual issues that must be confronted if courts are to craft a coherent and stable body of law governing the NCAA’s treatment of student-athletes. First, the value of the product at issue here—college sports—is intimately connected with the nature of the labor used to create it. Second, the nature of that value is …

The Potential Unintended Consequences Of The O'Bannon Decision, Matthew J. Parlow

Washington and Lee Law Review Online

The O’Bannon decision made a significant change to one of the philosophical pillars of intercollegiate athletics in allowing for greater compensation for student athletes. At the same time, the court took only an incremental step in the direction of pay for college athletes: The decision was limited to football and men’s basketball players—as opposed to non-revenue-generating sports—and it set a yearly cap of $5,000 for each of these athletes. However, the court left open the possibility for—indeed, it almost seemed to invite—future challenges to the National Collegiate Athletic Association’s restrictions on student-athlete compensation. In this regard, the court’s incremental step …

Contents May Have Shifted: Disentangling The Best Evidence Rule From The Rule Against Hearsay, Colin Miller

Washington and Lee Law Review Online

The rule against hearsay covers a statement offered to prove the truth of the matter asserted but does not cover a statement offered for another purpose. Meanwhile, the Best Evidence Rule states that a party seeking to prove the content of a writing, recording, or photograph must produce the original or account for its nonproduction. Does this mean that the Rule is inapplicable when a party seeks to prove something other than the truth of the matter asserted in a writing, recording or photograph? Most courts have answered this question in the affirmative. This essay argues these courts are wrong.

The Role Of The Courts In Time Of War, William C. Banks

Washington and Lee Law Review Online

The role of the courts in judging the actions of government in wartime has ranged from extreme deference to careful probing of alleged government excesses over more than two centuries. The courts’ record has reflected the nature of the armed conflicts the United States has engaged in and the legal bases for the actions at issue. In the aggregate, the courts have served as a necessary counterweight to government overreaching in times of national security crisis. It is easy to underestimate the institutional problems confronting judges who are asked to make momentous decisions in times of national crisis—difficulties of fact-finding …

The Still-Dwindled Revlon, Lyman P.Q. Johnson, Robert Ricca

Washington and Lee Law Review Online

This is a brief Response to Professor Mohsen Manesh’s extensive response to our original article, The Dwindling of Revlon. Our thesis is that today the iconic Revlon doctrine is, remedially, quite substantially diminished. Although Professor Manesh sets out to establish what he calls “the limits of Johnson’s and Ricca’s thesis,” we here maintain, as before, that there is little remedial clout to Revlon unless directors or others very significantly misbehave. We also criticize Delaware’s continuing use of the standard-of-conduct/standard-of-review construct in the fiduciary duty area. This rubric is unhelpful generally and strikingly so in the Revlon setting, as we …

United States V. Erwin And The Folly Of Intertwined Cooperation And Plea Agreements, Kevin Bennardo

Washington and Lee Law Review Online

Cooperation agreements and plea agreements are separate and independent promises by criminal defendants to: (1) assist the Government in the prosecution of another person and (2) plead guilty. A defendant’s breach of one should not affect the Government’s obligation to perform under the other. All too often, however, these agreements are inappropriately intertwined so that a minor breach of the plea agreement relieves the Government of its obligation to move for a downward sentencing departure in recognition of the defendant’s substantial assistance. This intertwining undermines sentencing policy as set forth in the federal sentencing statute. Thus, a district court should …

Nearing 30, Is Revlon Showing Its Age?, Mohsen Manesh

Washington and Lee Law Review Online

Nearly thirty years ago, in Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., the Delaware Supreme Court famously dictated that in certain transactions involving a “sale or change in control,” the fiduciary obligation of a corporation’s board of directors is simply to “get[] the best price for the stockholders.” Applying a novel remedial perspective to this iconic doctrine, in The Dwindling of Revlon, Professor Lyman Johnson and Robert Ricca argue that Revlon is today of diminishing significance. In the three decades since, the coauthors observe, corporate law has evolved around Revlon, dramatically limiting the remedial clout of …

Dynamic Common Law And Technological Change: The Classification Of Bitcoin, Shawn Bayern

Washington and Lee Law Review Online

Most legal analysis of Bitcoin has addressed public-law and regulatory matters, such as taxation, securities regulation, and money laundering. This essay considers some questions that Bitcoin raises from a private-law perspective, and it aims to show that technological innovation may highlight problems with conceptualistic, classical rules of private law.

Did New York State Just Anoint Virtual Currencies By Proposing To Regulate Them, Or Will Regulation Spoil Them For Some?, Sarah Jane Hughes

Washington and Lee Law Review Online

This Essay previews issues raised by the general subject of regulating virtual currencies and the specific efforts of New York State’s Department of Financial Services’ proposed Virtual Currency Regulatory Framework (the BitLicense) in particular. It focuses on five topics in the proposal and their interplay with the current regulation of “money services” and “money transmission” in other states, using the Commonwealth of Virginia and the State of Washington approaches on a few common topics for comparison purposes. It also asks whether regulation of virtual currencies is likely to cause more widespread adoption of virtual currencies or to frustrate the proponents …

Combatting Cyber-Attacks Through National Interest Diplomacy: A Trilateral Treaty With Teeth, Lawrence L. Muir Jr.

Washington and Lee Law Review Online

In May 2014, the Federal Bureau of Investigation indicted five Chinese nationals for cybercrimes against American companies. That indictment was an impotent response. The United States has no extradition treaty with China, and the defendants will in all likelihood never be tried in the United States. The inefficacy of the indictments highlights a larger problem: State-controlled cyberunits can act with impunity under the present mix of international and domestic law. No laws govern conduct between nation-states, and, thus, neither victims nor nation-states have recourse against violators. This Article suggests that the United States should pursue national interest diplomacy to triangulate …

Digital Value Transfer Systems, Edward Castronova

Washington and Lee Law Review Online

A “digital value transfer system” (DVT) is a computer program that moves purchasing power from one person to another by exchanging different forms of virtual currency. In this Essay, I will give examples of DVTs and explain how they work. Then I will use the economic theory of budgets to explain how DVTs increase the liquidity and reach of all forms of virtual money. In effect, DVTs make all forms of currency, from dollars to frequent-flyer miles, essentially equivalent in terms of purchasing power. I conclude with a brief discussion of the possible implications of DVTs for the economy and …

Smart Contracts, Bitcoin Bots, And Consumer Protection, Joshua A.T. Fairfield

Washington and Lee Law Review Online

Trustless public ledgers (“TPLs”)—the technology underneath Bitcoin—do more than just create online money. The technology permits people to directly exchange money for what they want, with no intermediaries, such as credit card companies. Contract law is the law of bargained-for exchange, so a technology that enables direct exchange online will change the reality of online contracting. The current problem with consumer contracting online is that courts and companies have collaborated to create an online system in which consumers cannot bargain. Under the current regime, consumers have no choice but to click the “I Accept” button. Online, contract law is not …

Commonwealth V. Morris: The Disappearance Of 169 Years Of Common Law?, Horace

Washington and Lee Law Review Online

In Commonwealth v. Morris, the Supreme Court of Virginia properly decided that the writs of coram vobis and audita querela may not be used to modify a final criminal conviction order more than twenty-one days after its entry. The court decided the inapplicability of coram vobis under Virginia Code § 8.01-677 and its own precedent. It decided the inapplicability of audita querela under the English common law, citing cases from 1670, 1701, and 1792. In the course of the opinion it conflated Virginia Code §§ 1-200 and 1-201 and held in dictum that Virginia’s adoption of the common law of …